Left Out of Your Parent's Will or Inadequately Provided For?
There is no rule against adult children making a claim against a deceased parent’s estate. However, this can be complicated where they have been estranged or by an express statement to exclude in the will. The Supreme Court’s decision in Jodell v Woods  NSWSC 143 offers some guidance.
The case involved an application by a 74 year old daughter in relation to the estate of her late mother. The deceased had left her entire estate worth just over $2 million, comprising primarily a house in Turramurra, to her younger daughter and had excluded the older daughter from the will completely. The relationship between the two was strained, and aside from a meeting just before her mother’s death, they had not spoken in almost 20 years. Efforts to maintain contact had not been reciprocated by the deceased. The older daughter was of relatively modest circumstances; her home in country Victoria was subject to a reverse mortgage and her source of income was the age pension. She sought sufficient provision from the estate to enable her to sell her home and move to Melbourne, with enough funds to live comfortably.
The Court ordered that the older daughter receive $425,000 to enable her to repay her mortgage and other debts and to provide a comfortable buffer.
The Court identified the following principles:
It was outlined that there is no need to show some special need or circumstances to justify making an order.
The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.
It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. Though this will not ordinarily extend to providing an unencumbered home.
It was noted that while most parents are not expected to look after their child into their retirement, it would be expected that a parent would make provision where otherwise they would be left destitute in their later years.
Where those making a claim have a child of their own, this will also be a relevant consideration for the Court in working out what is appropriate.
Where an adult child suffers from ill health, is unable to earn or has a limited means of earning an income, this could entitle them to a bigger share of the deceased’s estate.
Importantly, the Court noted that estrangement between a parent and child would be a relevant consideration; however, it will not be the determining factor.
The Court is not deciding on how fairly a Will treats siblings; the court is concerned with ensuring adequate provision is made, considering the circumstances.
The decision shows the complexity of claims involving adult children, and the balancing considerations examined by the Court.
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