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Darveniza v Darveniza & Drakos as Executors of the Estate of Bojan Darveniza & Ors – A landmark case for Family Provision Applications

I read with interest a decision recently handed down in the Supreme Court in the matter of Darveniza v Darveniza & Drakos as Executors of the Estate of Bojan Darveniza & Ors [2014] QSC 37. The case concerned a man’s application for further and better provision out of the Estate of his deceased father, for which he was awarded $3 million. This is the largest sum ever awarded to an applicant in a Family Provision Application in Queensland.

The background of the case

The background of the case is as follows:

  1. Mr D was a successful business man and property investor;
  2. His Estate was worth at least $26 million to $28 million;
  3. Mr D had two children with his first wife, Mr S and a daughter;
  4. Mr D then had three more children from a de facto relationship, and an additional three children from his second marriage;
  5. Mr D was survived by his second wife, J;
  6. Mr D made no provision for Mr S in his Will. The reasons for this included the fact that he had during his lifetime purchased properties for Mr S and had recently transferred management of the properties to Mr S. Mr S was also a potential beneficiary under trusts Mr D had established during his lifetime, and Mr S was also a stakeholder in properties owned by Mr D’s company;
  7. Mr D had also left some of his other children out of his Will, however their applications for further provision were settled prior to trial.

What did the Judge consider?

The Judge considered the two stage test from Singer v Berghouse, being:

  1. Was the provision made inadequate in all the circumstances?
  2. If yes to 1, then what provision ought to be made?

In applying this test, the Judge considered:

  1. Mr D had made substantial provision for Mr S during Mr D’s life;
  2. The properties which had been purchased by Mr D in Mr S’s name came with a debt of approximately $300,000.00 when Mr S took over their management;
  3. At the time of the trial, the evidence demonstrated that Mr S’s net worth at the time of Mr D’s death was $3.885 million, although Mr S submitted this net worth had decreased to $2.58 million at the time of trial; and
  4. Some years prior to Mr D’s death, Mr S had suffered a serious injury which significantly decreased his capacity to work.

What did the Judge decide?

In making his decision, the Judge accepted that:

  1. Mr S had performed a substantial amount of work over the years in Mr D’s business and contributed significantly to Mr D’s accumulation of assets;
  2. Mr D had made promises to Mr S over the years regarding the content of his Will, and many of those promises were not fulfilled;
  3. Some of the reasons Mr D listed in his Will for leaving Mr S out were mistaken and there was no real prospect that Mr S would receive any distributions from the trusts Mr D mentioned.
  4. Mr D’s Estate was very large;
  5. At the time of Mr D’s death, Mr S had substantial assets but also substantial liabilities;
  6. The provision Mr D had made for Mr S did not represent a gift but a discounted sale because of the effect of the lending Mr S had to secure to receive the gifts; and
  7. Mr S was significantly limited in his earning capacity.

The Judge assessed Mr S’s further provision to be $3 million. However, the Judge is yet to decide whose costs will be paid from the Estate.

I’ve been left out of my parent’s Will – what should I do?

This case sets an important precedent for matters the Court will take into account when assessing Family Provision Applications and claims against a will. If you feel that you have been left out of a Will unfairly, you should contact an experienced Estate litigation lawyer.

Please contact me should you require advice or assistance regarding Family Provision Applications.

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Written by—

Chloe Kopilovic

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