Common examples of estate claims illustrated by actual Court decisions:
Where the deceased has three children and the bulk of the estate has been left to one of three children. The will explained why no provision had been made which was that substantial provision had been made during the lifetime of the deceased. In this case, the plaintiff claimed the he had carried out work on a piece of land land that he thought was his and had carried out unpaid work on the family farming properties. The plaintiff was aged 63 years and had modest savings. The Court ordered provision be made out of the estate in the sum of $75,000.
Allan v Allan [2001] Supreme Court of Victoria
A widow who made a claim under Part IV Administration and Probate Act but a pre-nuptial agreement existed. The Court considered it should not ignore the fact that upon their marriage the couple established what seemed to them was a sensible and serious property regime vis a vis the pre-nuptial agreement. The Court gave effect to this by first rejecting that she should have a fee simple title to a house and directing that she have a life interest only in the house with the remainder passing in accordance with the gift only in the will. The Court observed the wisdom of generations of judges has dictated that a widow requires not only a roof over her head, but also what is called a ‘nest egg’ to give her some comfort in facing the unforeseeable vicissitudes which lie ahead. The sum of $50,000 was fixed as the amount of her nest egg.
Gigliotti v Gigliotti [2002] Supreme Court of Victoria
Claim by a friend of the deceased. Although the application was refused, the Court affirmed the principle, namely searching out the touchstone of what a wise and just testator would have thought was the moral duty. Moral duty is a pervasive principle in Part IV applications, even though those words do not appear in s91 of the Administration and Probate Act. Moral duty should be but one element
Lee v Hearn [2002] VSC 208
Claim by adult stepson against estate of stepmother. Held no moral obligation or responsibility on deceased to make provision for maintenance and support of stepson.
Henderson v Rowden [2001] VSC 267
Neither of the above cases mean neither a friend nor a stepson will succeed under a Part IV claim but it is clear the Court needs to be satisfied on the facts a strong case for moral obligation or responsibility must be proven.
Whereas in a will that provided a legacy of $100,000 for a disabled 53 year old stepson and a residuary estate of $358,108 to persons who had no particular call on the deceased’s estate (deceased’s brother and his wife and the deceased’s two nieces and a nephew). The deceased did not have any children of her own. The Court ordered an amount of $150,000 in addition to the amount of $100,000 provided by the deceased for the plaintiff’s benefit.
Busuttil v DeGabriele [2013] VSC
Estranged adult daughter (the plaintiff) suffering ill health and financial hardship. Estate of $500,000 was left to sister and family. The Court decided the plaintiff should have a roof over her head and monies were set aside for this. The main point of dispute between the parties was whether the plaintiff should have a further provision by way of a nest egg, The Court considered she should.
Penn v Richards [2002] VCS
Application by first cousin. The deceased died intestate. His estate fell equally to his two elderly uncles and aunty. They all lived modestly in Greece, owning their own homes and living off government pensions. They had little contact with the deceased. In this case, the plaintiff committed a lot of his time and effort to help the deceased in the last years of his life. Held deceased testator had responsibility to provide proper support of cousin in sum of $150,000.
IMO the will of Vourdoulidis [2013] VSC
Plaintiff claimed as a domestic or de facto partner of the deceased. No provision for the plaintiff in the will. The plaintiff and deceased were not living together at the deceased’s death as a result of their covert homosecual relationship. The Court considered the significance of the Relationships Act 2008 and whether or not there was a domestic or defacto relationship. Held: The plaintiff was a person for whom the testator had a responsibility to make provision for and further provision of the amount of $300,000 ordered.
Estrelia v McDonald & Ors [2012] VCS
Deceased treated the 26 year old plaintiff who resided in Manila as if she were his daughter, Plaintiff not in fact the deceased’s daughter. DNA testing after death proved the plaintiff was not his daughter. His Honour considered that the deceased’s conduct, despite his doubts, in continuing to treat and support the plaintiff as though she were his daughter created a moral responsibility to make provision for her. The plaintiff was awarded $675,000.00 over which a protective trust for 20 years was imposed due to the plaintiff’s young age and risk of exploitation. His Honour considered that the estate was sufficiently large to enable the court to ignore the interests of the other beneficiaries, as the amount of provision awarded still left a very significant residuary estate to be divided amongst next of kin. The deceased was unmarried and had no children.
Borebor v Keane [2013] VSC