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Adult Child of deceased fails in Family Provision Act claim

On: April 19, 2019

The recent Supreme Court of WA decision of Mills v Piller[1] is another example of the difficulties faced by adult children claiming further provisions from a parent’s estate pursuant to the Family Provision Act 1972 (WA) (FPA).  There are now numerous cases that deal with how the dependency of, and social expectation to provide for, children changes when those children are adults.

This was estate worth just over $2 million.  The deceased was the Mother (Luba Christou) of the Plaintiff (Ms Kaye Mills) and 4 other children.  A family tree, with the relevant personal and financial information of each child of the deceased, is provided below.  The deceased’s Will left the entirety of her estate to her children in equal shares.  That meant each child would have received approximately $400,000 as at the date of death.

Ms Mills was in some financial difficulty.  She was residing with the deceased for 3 years as at the date of death.  In her claim, she sought the ability to reside in the estate property for 3 months post sale.  She also asked for the immediate payment, from the estate property sale proceeds, of a fixed sum of $650,000 to enable her to find and move into a suitable 3-bedroom house in a suburb close to Perth.  She asked that this be provided to her in exchange for her equal share of the estate.

Whilst Ms Mills only sought an additional $250,000 from the estate, it is important to note that the request for a fixed sum of $650,000 would ultimately represent a far greater proportion of the estate following the deduction of the parties’ legal costs to take the matter to trial.

The Principles relating to Adult Children

The Court enunciated the principles concerning adult children, which were drawn from the NSW case of Wheat v Wisbey[1] and the WA case of Braun v Australian Executor Trustees[2].  It is useful to reiterate those principles here, as adult children should consider them when deciding whether to make a FPA claim.  They are as follows:

  1. The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.
  2. It is impossible to describe, in terms of universal application, the moral obligation or community expectation of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form.  The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his or her children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation.
  3. Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child’s life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death.  But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise, they would be left destitute.
  4. If the applicant has an obligation to support others, such as a parent’s obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant. But the Act does not permit orders to be made to provide for the support of third persons that the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to support such persons.
  5. There is no need for an applicant adult child to show some special need or some special claim.
  6. The adult child’s lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant.  In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased.
  7. The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim.
  8. Although some may hold the view that equality between children requires that ‘adequate provision’ not discriminate between children according to gender, character, conduct or financial and material circumstances, the Act is not consistent with that view. To the contrary, the Act specifically identifies, as matters that may be taken into consideration, individual conduct, circumstances, financial resources, including earning capacity, and financial needs, in the court’s determination of an applicant’s case.
  9. There is no obligation on a parent to equalise distributions made to his or her children so that each child receives benefits on the same scale as the other.

In applying the above principles to this case, the Court determined there were facts that weighed in Ms Mills’ favour:

  • Ms Mills was not married or in a de facto relationship.
  • Ms Mills had not worked for some time, suffered from various ailments and was not capable of holding stable employment.
  • There was nothing in Ms Mills’ expenses that suggested an extravagant lifestyle.
  • Prior to the deceased’s death Ms Mills had fallen on hard times – she had no savings and relied on government assistance.
  • Ms Mills had a distinct lack of reserves to meet the demands of her ill health.

The Court said the community would expect, in the above circumstances, a parent to provide the adult child with a buffer against contingencies.

The Decision

The Court concluded that the will did provide Ms Mills with a buffer for contingences, as she would have held $380,000.00 after clearing all her debts.

The Court could not justify disturbing the other children’s entitlements to increase that of Ms Mills.  The other children also suffered from their own ailments, had modest superannuation, were of advancing age and did not have a guaranteed capacity for full time employment.

The court went on to state that, even assuming Ms Mills had satisfied the Court that she was not adequately provided for, she would have failed to justify why she needed to purchase herself a 3-bedroom house in a suburb relatively close to Perth.

Message to Adult Children

Adult children must very carefully consider the merits of their FPA claims, particularly when their siblings have similar personal and financial circumstances and the Will provides for them equally.  By the time the matter has proceeded to trial and the estate has been depleted by legal fees, the adult child could find themselves in receipt of an amount far lower than the figure they were initially aggrieved by.  These days, with the Court tightening the noose on costs in FPA claims, they may also find themselves at the receiving end of an adverse costs order.

[1] [2013] NSWSC 537 [128] (Hallen J).

[2] [2014] WASC 210 [11] (Sanderson M).

[1] Mills v Piller [2017] WASC 45