Horwood v Ah Shay  QDC 199 – When will provision be made for a step-child from a small estate?
I have recently written about step-children and their eligibility to apply to the Court for provision from their step-parent’s estate. I have now read with interest a recent decision in which the Court made provision from a small estate for the Willmaker’s step-son.
The background of the case is as follows:
- Mr AS died on 27 December 2011;
- Mr H is Mr AS’s step-son, and had been since he was nine years old;
- In his last Will, Mr AS left Mr H a gift of $15,000 and his car;
- The balance of Mr AS’s estate was left to his natural son, Mr RL, and he did not make any provision for his other two step-children;
- Mr H applied to the Court for further provision from Mr AS’s estate;
- Mr AS’s estate at the date of his death was worth approximately $262,925.22;
- After the deduction of estate administration costs, and prior to the consideration of legal fees associated with Mr H’s application, the Court considered the estate was currently worth $221,681.29;
- Mr RL is the Executor of Mr AS’s estate.
What did the Judge consider?
The Judge considered the following:
- Section 40 of the Succession Act 1981 states that a step-child is a child of a Will maker for the purposes of a family provision application;
- From when Mr H was 13 years old to when he was 16 years old, he worked unpaid on Mr AS’s cane farm;
- Until Mr H’s mother’s death, he assisted Mr AS by completing plumbing work and other odd jobs at Mr AS’s property;
- After the death of his mother, Mr H and his wife took care of Mr AS by completing repairs around his property, cooking for him, attending to odd jobs around his property and taking him to medical appointments;
- Mr H’s financial situation is that:
- He and his wife’s assets, after the deduction of his liabilities, are approximately $527,122.93;
- He suffered a shoulder injury in October 2012, which is the subject of an ongoing personal injuries claim, but he is likely to continue working as a plumber until normal retirement age;
- Mr RL and his wife’s assets, after the deduction of their liabilities, are $569,500;
- Mr RL had given misleading evidence in his affidavit material, which gave an improper reflection of his assets and liabilities;
- Although Mr RL appeared to be a loving son to Mr AS, his attitude to the proceedings was disappointing;
- In Mr AS’s Will, he had directed that Mr H’s $15,000 legacy be paid from the sale of his property. As at the time of the proceedings, Mr RL had made no realistic attempt to sell the property as he had persisted in listing it for sale at well over the valuation he had received;
- Mr RL had been claiming a substantial amount for the ongoing upkeep of the property, which was inappropriate as he had not been making any real attempt to sell it.
What did the Judge decide?
The Judge found that:
- Mr H’s contribution to the maintenance and upkeep of Mr AS’s property was significant, as the property was the sole asset of Mr AS’s estate;
- Considering Mr H’s contribution to the maintenance and upkeep of Mr AS’s property, the gifts of $15,000 and the motor vehicle were not adequate provision for him from Mr AS’s estate; and
- Although Mr AS’s estate is small, that did not preclude the Judge from making further provision for Mr H.
The Judge made provision for Mr H of $30,000 over and above the $15,000 legacy he received under Mr AS’s Will.
If you feel that you have not received adequate provision under a Will, you should consult an experienced estate litigation lawyer. Please contact me should you require assistance or advice.