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Inadequate Provision Under a Will

Updated: May 16, 2021

A Supreme Court of Queensland decision in 2012 highlights the fact that in a suitable case the Court will interfere with a Testator’s wishes and effectively change the terms of his or her Will.

In Richards v Augustine (2012) QSC, the deceased died in 2009, leaving behind him an estate worth approximately $1.25 million. Under the Will, the deceased’s sons, Bruce and Clive, were left shares in the estate (which included real estate) worth a total of approximately $1.1 million. Bruce and Clive were also appointed as the Executors of the estate under the Will. The deceased’s daughters, Carol and Marie, were each left shares of the estate worth approximately $77,000 under the Will.

Carol filed Court proceedings, alleging that inadequate provision was made by the Testator in his Will for her proper maintenance and support. The two brothers opposed the application.

In 1994, a family meeting had been held at which the deceased reputedly said “my land will be going to my boys, because they bear the Augustine name”. Carol had married in 1970 at age 19, and separated from her husband in 1987. She went under the surname “Richards”.

Evidence was provided that Carol had a history of significant health problems. She suffered from chronic fatigue syndrome, anxiety, depression and breast cancer. It was submitted that her health problems had affected her capacity to earn income and would continue to do so.

It was submitted by the two brothers that Carol was distant from her father, but the Judge did not accept that submission. The Judge found that Carol was in regular contact with her father, and provided support and assistance to him from time to time. The Judge found that in her early years she had also contributed to the welfare of the family. Carol gave evidence that she was always aware that her father did not value his daughters as equal children to his sons. Notwithstanding that, the Judge accepted on the basis of Carol’s evidence that her relationship with her father remained good throughout his life.

The Court observed that in a 2008 New South Wales Supreme Court decision, the Judge stated that a Testator is often far better placed than the Court to make a just assessment of all the claims on his or her estate, and that accordingly the Court should be slow to depart from the Testator’s testamentary wishes. However the Judge said that whilst it may be accepted that this proposition is, in general, correct, it does not follow that it is applicable in every case.

The Judge found that a Testator’s decision not to leave an interest in valuable assets to daughters of a deceased person because they did not bear the family name reflects a deliberate decision not to give the consideration of a wise and just Testator to the competing claims of his children.

After examining the financial positions of each party, the Court found that at the time of the deceased’s death, Bruce and Clive were both in a sound financial position whereas Carol’s financial position was precarious. Her health problems had affected her capacity to work, and her employment future was quite uncertain. She had made withdrawals from her superannuation fund out of necessity, and there was no rational basis for thinking that her financial position or her health might improve.

The Judge determined that in view of Carol’s significantly greater financial needs than those of her brothers, he was satisfied that the deceased’s Will did not make adequate provision for her proper maintenance and support.

The Judge concluded that he was prepared to make an Order for the provision to Carol of the sum of $250,000 out of the estate.

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