Provision for an adult child excluded from their parents Will
When is a court in Victoria prepared to order provision for an adult child excluded from their parents Will?
The Victorian County Court 27 June 2024 decision ordering substantial provision to an excluded adult child from her parent’s estate demonstrates the Court is prepared to override freedom of Will making if case circumstances demand it.
Key Case Points: Stamoutsos - V - Stamoutsos
- Anna Stamoutsos’ Estate was worth about $1,150,000.00.
- Ms Stamoutsos died in 2023 leaving 2 surviving adult daughters.
- Her Will left her entire Estate to one daughter wholly excluding the other.
- Her Will contained no reasons for excluding one of her daughters.
- The excluded daughter made a claim for provision.
The Court's Decision on the Will Contest
- Judge Fraatz ordered the Estate pay the excluded daughter $475,000.00 provision.
- The provision amount was 41.38% approx. of the Estate.
Why did the excluded daughter succeed on her claim?
The key decision points were these:
An adult child (daughter or son) is eligible to make a claim for provision from his or her parent’s Estate.
In considering whether to order provision in what amount:
- the degree of moral duty Mrs Stamoutsos owed the excluded daughter was considered (moral duty);
- the degree to which the distribution of Mrs Stamoutsos’ Estate failed to make adequate provision for the excluded daughter’s proper maintenance and support was examined; and
- the degree to which the excluded daughter was not capable by reasonable means of providing adequately for her own proper maintenance and support (financial need) was also examined.
The question of moral duty involved an examination of the nature and quality of relationship between Mrs Stamoutsos and the excluded daughter. The Court found the deceased had a moral obligation to provide for the excluded daughter’s proper maintenance and support and that any lack of contact or support afforded to her mother in the later years of her mother’s life was in part a consequence of an at times strained relationship between them.
The question of financial need involved an examination of the excluded daughter’s assets, income, financial needs and ability to meet them. In this case the excluded daughter was living in rented premises, had virtually no assets, had various health conditions, a dependant son, some debts and limited income from part time employment.
The Court considered the $475,000.00 provision amount proper and adequate in giving the excluded daughter a measure of financial security to obtain proper housing and a car with a nest egg of monies for contingencies.
Senior Associate Carl Wilson of Galbally & O’Bryan Lawyers acted for the excluded daughter.
Find out more about making a Will contest claim if you are not in the Will.
Carl and Partner Andrew O’Bryan are expert Will contest lawyers and can help you make a successful provision claim.
Both Carl and Andrew will review your case and provide clear, easy to follow advice and take action to give you the best possible outcome.
We have offices at Melbourne, Dandenong and Pakenham.
Contact us or call us on 03 9200 2533.
How to contact our Will contest lawyers
Contact out Wills & Estates lawyers
Carl Wilson
Galbally & O'Bryan
Lawyers
259 William Street
MELBOURNE VIC 3000
T (03) 9200 2533
E cwilson@galballyobryan.com.au
Andrew O'Bryan
Galbally & O'Bryan
Lawyers
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MELBOURNE VIC 3000
T (03) 9200 2533 I M 0400 469 704
E aobryan@galballyobryan.com.au
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DANDENONG VIC 3175
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