By Terri Gough - 5 Apr 2019
Accompanying the increase in blended families is a
corresponding increase in claims by children against the deceased
estate of a parent who entered a new relationship. Acrimonious
divorces and de facto separations sometimes leave children of the
relationship estranged from one parent. This in turn can sometimes
result in the children being disinherited in favour of the
estranged parent's new partner and family.
In Cartwright v Joseph the High Court determined the
claim by two daughters against their father's estate. Through no
fault of their own, the daughters had become estranged from their
father following an acrimonious divorce that occurred decades
earlier. The father left his entire multi-million estate to his
subsequent de facto partner of many years.
The daughters brought their claim under the Family Protection
Act. This Act empowers the court to make provision from an estate
in favour of certain family members where the deceased failed to
make adequate provision for those family members' proper
maintenance and support.
The court's enquiry is twofold: Firstly, as to 'maintenance',
that is, the claimant's financial needs. Secondly, as to 'support'
which focusses on non-financial considerations, for instance,
relations within the family.
Cartwright is interesting because the daughters had no
financial need, which meant that their claim focused solely on
their father's failure to provide 'support' to them. The Court
said:
In terms of economic support, I
accept [the deceased] all but completely failed to provide
his daughters with economic support during their childhood. Any
financial comfort [the claimant daughters] now enjoy is
largely due to their own efforts. No credit of any kind may be
given to [the deceased] for the fact that both his
daughters have succeeded despite such trying and avoidable
circumstances. However, I consider this factor goes to an
assessment of the magnitude of his emotional failure; it is a
component of his failure to recognise and treat them as members of
his family rather than a separate failure to provide appropriate
economic support in his will.
Having determined that the deceased breached his 'moral duty' to
his daughters, the court proceeded to consider what award was
sufficient to remedy that breach.
The daughters sought 15% each from an estate of a little under
$4 million. The court considered that to be at the high end for
claims of this type and that an award closer to 10% would be
sufficient to remedy the breach.
The estate asset largely comprised rural land which provided an
income and home for the deceased's widowed partner. To balance the
needs of all parties, the court made provisional orders that some
of the land be subdivided off and sold in order to meet the
claimants' award of approximately 10% of the estate each.
Martelli McKegg specialises in deceased estate and trust
litigation. If you believe you have not been treated as expected in
relation to an estate or a trust, then contact one of our team and
we will be able to indicate the options that may be open to
you.
Contact
Terri
Gough