In the case of Hay v Public Trustee of Queensland & Anor [2014] QDC 107, His Honour Justice Baulch considered an application by 2 adult children against the estate of their late mother.

The second respondent was the deceased’s widower.

In summary:

  • Estate worth approx $300k (one house property)
  • 2 adult children
  • 1 widower
  • deceased and widower were together for 24 years – ceasing on her death
  • the applicant’s claimed the deceased was an alcoholic – His Honour dismissed this allegation
  • the applicant’s claimed the widower beat them as children – His Honour dismissed this also on the basis of the widower’s evidence and the 3rd child corroborating the widower’s side of the story
  • one of the applicant’s evidence of their financial situation was not offered up to the Court, leaving His Honour to determine that the applicant was not experiencing any significant financial difficulty
  • the other applicant’s evidence of their financial situation was borderline arguably misleading in respect of their ability to obtain government assistance
  • His Honour was not at all impressed that the legal costs had taken up most of the estate

His Honour held:

  • The applicants claim should fail; they did not have a strong moral claim.
  • The widower had a stronger moral claim and the obligation to make provision for the widower was a strong one.
  • His Honour referred to Bladwell v Davies [2004] NSWSC 170 – noting Justice Ipp’s comments that the applicants had the capacity to earn and improve on their financial situation, whereas the widower did not.
  • His Honour dismissed the submission from the applicants to provide a life interest stating that such an interest would not offer any flexibility to the widower should he require nursing care ore other accommodation. His Honour referred to Cropley v Cropely (2002) NSWSC 349 and Cameron v Vial (2009) NSWSC 79 noting that a widowers claim should take precedence over claims by adult children.

As to costs, the matter was adjourned to a later date.

3 replies on “Family Provision Claim: Widower VS Adult Children x2

  1. Wouldn’t you love to know how those cost played out. I’m afraid the estate would have to at least pay there own.

  2. I would expect the same in respect of the estate’s costs, provided the executor acted reasonably and sensibly in defending the claim. Indeed, I would like to see the outcome as to costs as well.

Leave a Reply