The personal and often emotional issues that arise when people’s expectations are not met by the decisions of a will maker often give rise to thoughts and actions premised on entitlement and occasional avarice. However, the usual “pub talk” that follows can be a slippery slope of disaster and it is worthwhile occasionally reviewing what the Court’s attitude is towards the genesis of a family provision claim rather than just relying on commonly held beliefs.
Courts will frequently ask the wills lawyer to present the nature of the estate such as its size and the composition of its assets and liabilities as well as the financial position of the parties. In Darveniza the Queensland Supreme Court awarded $3m out of a $27m estate to a son who had performed significant amounts of work in the deceased’s business relying on certain promises of provision. Similarly, in Mead the Western Australian Supreme Court ordered $25m paid to the daughter of a relationship between the testator and his former wife, from whom he was divorced. The estate was agreed to have a value of at least $1Bn and the testator, who was in his third marriage at the time of death had some obvious issues with the daughter and left her approximately $3m inside a trust that made it almost impossible for her to actually receive the money. The case is currently on appeal.