Adult Children, the Largest Group of Persons who Contest a Will…But Will You Win?

Published 31 Aug 2017

Author: Garbis Kolokossian

Losing a parent is one of the greatest losses a person can experience. This can only be made worse for children by finding out after their passing that they have been left out of their will or that siblings have been left unequal shares of their estate.

In NSW, a two-step approach is undertaken to determine whether a Court will award provision to an adult child contesting a will.[1] . A review of sections 57 and 59 of the Succession Act 2006 is the first step an adult child will need to undertake when contesting a will.[2] Section 57 of the Succession Act 2006 provides various categories of persons who can contest a will. Section 59 of the Act conveys the differences in characteristics of the classes of persons listed in section 57 of the Act. This establishes the adult child’s eligibility to contest the will.

After eligibility has been established, it must be determined whether the deceased has ‘provided adequate support for the maintenance, education and advancement for the individual.’[3] The Court has discretionary power to determine whether provision should be made.[4] This is determined by the deceased’s moral obligation contrasted against the adult child’s need and moral claim.

Under family provision legislation, the largest category of persons contesting their parent’s wills are adult children.[5] These children challenge either the unequal distribution of assets amongst siblings in order to achieve an increased inheritance,[6] or their exclusion from the will.[7]

The following cases have displayed the different circumstances in which an adult child can successfully contest a will.

  1. Issues of unequal distribution of assets between siblings and estrangement were reviewed in Cooper v Dungan (1976) 50 ALJR 539 an estranged adult child contested her late mother’s will because it was not divided equally amongst her and her siblings. An issue with her claim was that she needed the money to pay for her children’s private school fees. It was held that even though there was a cheaper alternative for her children’s education (public schools), this did not affect her claim. It has been said that if there has been a period of estrangement between the two parties and it is the fault of the child, the Court is likely to rule in favour of the deceased’s will. However, this was not followed in this case as the dispute was the fault of the child but the Court ended up ruling in favour of the child’s claim. This decision was upheld in the High Court of Australia.
  2. Where a child has been cut out of an estate due to a distant relationship with their parents was examined in Bourke v Keep [201] NSWCA 64. Here, a daughter was completely left out of her mother’s will because she did not keep in contact with her because she did not approve of her husband. She successfully contested her mother’s will and was award $200,000. This decision was upheld in the Court of Appeal.  
  3. In a situation where the biological children of the deceased contest a will where the estate has been left to the step-parent, Neale v Neale [2015] NSWCA 206 demonstrates that the biological children are able to successfully contest the will.

What Can I Do?

To achieve the best possible outcome for your claim, it is crucial that you approach a lawyer experienced in contesting wills. Gerard Malouf and Partners Expert Lawyers have the required experience and the compassion needed to make an already difficult situation easier. If you have an enquiry do not hesitate to contact us for a free initial consultation at our numerous offices across NSW, Queensland and the ACT, or via a phone call on 1800 004 878.

 

[1] Singer v Berghouse (No.2) (1994) 181 CLR 201.

[2] Succession Act (2006) (NSW) s 57, 59.

[3] Gorton v Parks (1989) 17 NSWLR 1.

[4] Singer v Berghouse (No.2) (1994) 181 CLR 201.

[5] Tilse, C., Wilson, J., White, B., Rosenman, L. & Feeney, R. (2015) Having the Last Word? Will making and contestation in Australia. The University of Queensland.

[6] Jones v Smith [2016] VSCA 178.

[7]Neale v Neale [2015] NSWCA 206.

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