Dawson v Joyner
In a recent Queensland Supreme Court decision Dawson v Joyner [2011] QSC 385 (12 December 2011), the Court has found that where an estranged child has been left out a Will, the child will not automatically be entitled to benefit from the deceased’s Estate.
The Facts
- The will maker left an estate worth $2.3 million to his two younger son and made no provision for his eldest son;
- The will maker helped his eldest son purchase a rural property before they became estranged for 22 years;
- The estrangement came about as a result of the will maker’s separation and divorce from the son’s mother;
- The son sided with his mother and the will maker alleged the son owed him money;
- They came to a property settlement agreement and one of the terms was that the son would release his rights to make a family provision claim against the will maker’s estate. This was held to be void so far as the legislation was concerned but the Court accepted it was relevant to the intention of the settlement;
- The son stated his relationship with his father reformed when he visited him in a nursing home;
- However this was rejected as the will maker had dementia which meant he was incapable of forming or maintaining relationships;
- The son was married and they had a net asset position of approximately $1.5 million;
- The son was employed in the mines and heard a gross income of approximately $150,000.00 per annum;
- The younger sons had helps the will maker build his estate by working on farming properties.
Conclusion and Order
The Court found that the eldest son had not satisfied that the Will failed to make adequate provision for proper maintenance and support and dismissed his application.
This case demonstrates that the Court will always taken into account the will maker’s wishes but also, the circumstances of the applicant. If you need advice with regard to contesting a Will please do not hesitate to contact me.
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