In a recent case the mother was a widow. Her immediate family consisted of her son, her daughter and two grandchildren. The mother left her entire estate including her mobile phones, personal goods, home and car to both her grandchildren and her daughter. She did not make any provisions for her son. The son had a medical condition that was such that he had virtually no earning capacity.
The son applied for a Family Provision Order under Chapter 3 of the Succession Act 2006, based on the contention that the mother had not made adequate provision for him in the will. The son also filed an additional claim for 3,219 ordinary shares in Westpac Banking Corporation which were held in the joint names of the son and the mother. He argued that those shares did not form a part of the property of the estate and that he should be the sole owner of them.
The Court had to first decide whether the son was an “eligible person” to apply for a Family Provision Order. In this case there was no dispute about that because children of a deceased person are within the classes of “eligible persons” specified in the Succession Act. The Court also had to decide whether adequate provision for proper maintenance, education, or advancement in life, of the claimant had been made in the will. The son bore the onus of persuading the Court that adequate provision has not been made for him.
The Court concluded that the provisions made for the son in the will were inadequate for his proper maintenance or advancement in life, and ordered that the son be given a lump sum of $55,000 out of the estate. In coming to this conclusion the Court considered the son’s medical condition. This was balanced with the Court’s view that a parent is not responsible for the entire provision and upkeep of adult children. In the Court’s view, while there is generally no such responsibility, in this case the mother should have provided the claimant a “modest” lump sum to provide for some of the needs of the son of which he had given evidence.
The Court also concluded that the shares held in the names of the son and the mother did not form a part of the property of the estate and therefore the son could keep them. This is consistent with the general rule that jointly held property passes to the surviving joint owner and is not considered as part of the estate property. The judgment in this case demonstrated that generally will makers do not have to provide for adult children but they must consider whether their children have special needs.