Recently we wrote about adult children seeking to contest their parents will. Whilst an adult child may assert “as of right” that a parent is bound to treat children equally in their will, that is not an automatic right as the following case from last year illustrates.

A mature aged adult son, with a reputation for being “a spendthrift of sorts” sought to make a claim against his mother’s estate at the expense of his only sibling despite the fact that his mother by her will, left him a property in excess of $1.2 million coupled with several years’ annuity of $66,000, but he wanted more.

As a child of the deceased, the son qualified as an “eligible person” to apply for a family provision order against his mother’s estate. When she died, his mother left an estate with an estimated value of over $6 million.

When his mother and his late father were still alive, the son took what was described as an early “inheritance in the form of substantial parental assistance, from time to time, as he encountered crises in life (with a divorce, involvement in court proceedings, and subjection to disciplinary proceedings affecting his entitlement to practise his chosen profession)”. “Having received his inheritance, and (not for the first time) fallen on hard times, the plaintiff looks to his mother’s estate (more particularly, the defendant’s inheritance) for relief against pressing debts and for a larger share of the estate”.

To succeed in his claim, the son was required to establish that he has been left without “adequate provision for his maintenance, education and advancement in life” from his mother’s estate and that further provision “ought” to be made for him from her estate. In his application the son sought a further $1 to $1.5 million from his mother’s estate to which the court noted such an “ambit claim suggests that he has a misplaced sense of entitlement”.

In undertaking a review of previous wills made by the deceased, the court noted throughout her son’s adult life “the deceased accommodated his claims of necessity on her generosity; but she remained mindful of her desire, by her will, to even up the scales as between” her son and daughter.

Ultimately the court determined the son failed to establish that he had been left without adequate provision for his proper maintenance, education and advancement in life out of the estate and his application was dismissed.

At Everingham Solomons we have the expertise to assist you with all matters relating to family provision claims, because Helping You is Our Business.

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