When an adult child is dissatisfied with the share that they have been left under a deceased parent’s Will, they may be able to apply to the court for further provision from the parent’s estate. The mere fact that an adult child may be living independently and earning an income does not mean that they are barred from claiming further provision from a parent’s estate. In such cases the court will consider a variety of factors to determine whether adequate provision for the proper maintenance, support, education or advancement in life, has been made for the adult child under the Will. Importantly, the court will also consider any legitimate claims on the estate by other persons.
This is precisely what occurred in the recent case of Taylor v Taylor  WASC 71. James Taylor (the deceased) left a Will which allocated his $560,272.00 estate between his five adult children. The Will specified that approximately $430,000.00 was to be given to one of his sons, Allan Taylor, and that the remainder of the estate was to be divided equally between the four remaining children, one of whom was Lindsay Taylor (the plaintiff). The plaintiff proceeded to bring a family provision application on the basis that his father did not adequately provide for him, in the light of his particular circumstances.
The plaintiff was 58 years of age and was employed on a full time basis. Together with his wife, he possessed assets totalling $419,274.00 at the date of the trial. He had four children, the youngest being 10 years of age. He also had significant health issues, including Ischaemic Heart Disease, Chronic Obstructive Pulmonary Disease, and Sleep Apnoea, all of which required ongoing medical treatment.
Differently, his brother Allan was 45 years of age and in reasonably good health. He had never married and had no children of his own to care for. However, in the four years preceding their father’s death, Allan had acted as a carer for the deceased. The deceased had required a very high level of care, whereby he had been reliant on Allan for basic tasks such as showering, dressing, toileting, wound care, cooking, cleaning, arranging/attending medical appointments, and facilitating leisure outings etc. Allan’s assistance also allowed the deceased to remain living in his home instead of moving to an aged care facility.
In determining whether adequate provision had been made for the plaintiff, the court considered a variety of factors including the plaintiff’s financial position in the light of his ongoing medical needs, and his obligation to support others. It was also noted that the existence of any moral claim to the estate was a relevant consideration in determining whether adequate provision had been made for the plaintiff. In this regard the court weighed the plaintiff’s claim against the legitimate claim of Allan, who had forgone his own independence in order to care for the deceased.
Weighing all relevant factors, the court ultimately dismissed the plaintiff’s application noting that the deceased had every moral justification to distribute his estate in unequal portions between his children. It was viewed that the deceased’s decision to leave the majority of his estate to Allan, represented the deceased’s gratitude for the years of care and selfless conduct by Allan in being his carer.
This decision highlights the delicate balancing act that must be undertaken by the Court when considering the competing claims of adult children. Moreover, the prospects of being successful in bringing a family provision application are highly dependent on the specific background of the parties and the factual matrix surrounding the application.
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