As we approach a new year of new estate disputes emerging from the Court, it is interesting to observe the tendency for ‘trends’ in case law. Looking back on estate challenges in 2020, it could be described as ‘The Year of the Adult Child’, beause a significant proportion of the litigation in this area involved claims by adult children from a deceased parent’s estate.
Maher v Maher  VSCA 161 – In this case, two of the deceased’s 11 children attempted to bring an application for further provision decades after their father had died. The matter involved farming properties/ partnerships, and although the delay was understandable, the Court of Appeal refused to allow the application based on the prejudice to the remainder of the beneficiaries which would be caused as a result of the late application.
Re Janson; Gash v Ruzicka  VSC 449 – In this case, the Court refused an application for further provision by an adult daughter who had failed to provide evidence of her assets, liabilities, and expenditure. It is an important reminder that claimants need to demonstrate not only a moral duty of the deceased to provide for the claimant, but also to demonstrate evidence that the claimant has financial need.
Joss v Joss  VSC 424 – Unusually, in this case an adult child successfully claimed for further provision from her father’s Estate, where her mother was still alive and the main beneficiary of the deceased’s Will. This was a particularly unique matter, and more details are available in a previous blog on Burke & Associates Lawyers’ website here, however the outcome was likely influenced by the size of the Estate (estimated to be around $14.5 million), and the fact that there were enough assets to provide for both the plaintiff (the adult daughter) and the intended beneficiary of the Will.
Interestingly, in this case the deceased had specifically provided a letter outlining behaviours by the adult child which may ordinarily be considered ‘disentitling conduct’ (for example, the child had planned to kill the deceased and had shared this plan with a number of people). The Court held that the applicant’s conduct had decreased the moral duty that the deceased had towards the applicant. However, such duty was not negated entirely. The order was made in the favour of the applicant and she was awarded further provision from the estate of the deceased.
Re Schlink; Keane v Corns  VSC 180 – In this case the deceased was survived by his daughter and his partner of 20 years. The deceased had made a Will leaving $50,000 to his daughter and the remaining estate to his partner. The deceased’s daughter had brought the application to the Court seeking further provision from the estate.
The court held that the plaintiff daughter was an eligible person to make family provision claims and the deceased had a moral obligation towards the plaintiff. Although the adult daughter did demonstrate financial need, the partner was retired and in need of financial security. In these circumstances, where the size of the Estate was fairly modest, the Court ordered that the deceased had substantially discharged his obligation towards the plaintiff. This can be contrasted with the case of Joss v Joss (above) in which there was a substantial estate.
Re Flavel; Flavel v Flavel  VSC 19 – In this case, claim was brought by three out of four children of the deceased. The defendant in this case was the fourth child of the defendant. The deceased divided his estate in his Will and left 89.5% of the estate for the benefit of the defendant, 5.15% in the favour of two of his children and 0.2% in the favour of the fourth child. The three children receiving lower percentages had challenged the Will. In this case, the Court agreed that the distribution under the Will was not sufficient to satisfy the moral obligation of the deceased towards the plaintiffs, and did make further provision in their favour.
Re Dodson; Dodson v Dodson  VSC 833 – We’ll sneak this one in to the 2020 year, having been heard in November 2019. In this case, the deceased left a surviving partner and three adult children. The youngest of the three children was reliant on a disability support pension, and lived in a property owned by the deceased without paying rent or making any meaningful financial contribution to the upkeep of the property. The elder brother had qualified and worked as a mechanic, however for the decade prior to his father’s death, he had worked full time on his father’s farm, and had entered into a farming partnership with the deceased. Their sister was employed independently, and had received a gift of land from the deceased prior to his death, upon which she and her husband built their family home.
The deceased had written a supplementary explanation regarding his relationship with the youngest child, and the financial benefit provided to him during his lifetime. The Court considered whether the provisions in the Will for the youngest child were sufficient, and accepted that he would need a ‘nest egg’ to support him in the future. His siblings had proposed an offer the Court characterised as ‘generous’, amounting to a residence for life plus $800,000. The Court indicated that, given the plaintiff’s issues with alcohol, it may be preferable for the funds to be held in trust for the benefit of the plaintiff.
It will be interesting to see whether the trend of the ‘adult child’ continues into 2021, or whether a new trend emerges. If you have any questions or concerns in relation to your own estate planning and family situation, and would like to discuss how you may avoid a potential claim against your estate; or if you are looking to make a claim or find yourself in the midst of a dispute about a Will and need advice, contact Meghan Warren, Principal, Rohani Bixler, Special Counsel or Luke Palmer, Associate.