Family provision: when is enough... enough?

It’s the classic story – your elderly parent has just passed away and one of your siblings - you know, the one that rocks up at Christmas without so much as offering to bring a bottle and who never once took Mum to do the shopping - decides they're not getting 'enough' from your parents’ estate. They contest the will under the Inheritance (Family Provision) Act which allows a spouse, child or grandchild (amongst others) to seek further entitlement from an estate if they have been ‘left without adequate provision for [his or her] proper maintenance, education or advancement in life’.

But what does that really mean? Sure, you're getting a little bit more than your sibling, but Mum did that deliberately, as a thank you for looking after her. And Mum and Dad helped your sibling out plenty during their lifetime... So isn't their bequest under the will 'enough'? Even if it isn't an equal share, isn't that 'enough'? Or what if you are getting the same – why should one sibling be entitled to any more? Haven’t they received ‘enough’?

Unfortunately, there is no magical number that is considered ‘enough’. It depends on the facts in each particular case, including the size of the estate, the wealth of the individual claimant and their relationship with the deceased. To make it even more complex, this is also an area of the law where even judges can disagree greatly on what is ‘enough’.

Take the recent case of mining magnate, Michael Wright, in Western Australia. His estate was worth more than $1 billion (with some estimates suggesting it was as much as $1.5 billion). He had three children… and a fourth, so-called ‘secret’ child.

Olivia Mead, the then-teenaged ‘secret daughter’, was left $3 million in a trust fund that she could not access until she turned 30 and even then, only so long as she adhered to various conditions. The bulk of the estate was left to the deceased’s other (adult) children.

Ms Mead contested the estate and sought $12 million (reduced from the $20 million she initially sought). In formulating her claim, Ms Mead factored in the cost of things such as 20 pairs of $300 shoes every year for the next 75 years, weekly pilates lessons until the age of 97, upkeep for her pet axolotl, a $1.6 million crystal-studded grand piano and a $2.5 million house.

Ms Mead won her case and was awarded $25 million - $5 million more than she initially sought.

This is a large sum of money – more than most of us would ever dream of. It could also be said to be more than what was ‘needed’ to ensure Ms Mead’s ‘adequate provision for her proper maintenance, education or advancement in life’. However, the courts have consistently said that the words ‘proper’ and ‘adequate’ need to be interpreted in the context of the particular case at hand. When considered in that context, $25 million from an estate in excess of $1 billion suddenly doesn’t seem like that much.

But Ms Mead’s story doesn’t end there. In 2017, the judgment was appealed to the Full Court of the Supreme Court of Western Australia. On appeal, Ms Mead’s payment was reduced to $6.1 million – significantly less than the initial $25 million, but more than double her entitlement under the will.

What's the moral of this story?

When it comes to inheritance, there is no amount that can absolutely be said to be ‘enough’. The outcome will depend on the particular circumstances of the case, and different judges will exercise their discretion in different ways. As one English judge said back in 1680:

“The discretion of a Judge is the law of tyrants. It is always unknown. It is different in different men. It is casual, and depends upon constitution, temper, passion – In the best, it is often times caprice. In the worse, it is every vice, folly and passion, to which human nature is liable.”

The only thing we know for sure is that across Australia, approximately 75% of claimants are successful and receive (at least some) further provision from the estate. 

Estate litigation is a complex area of law and whether you are seeking greater provision from an estate or defending a claim against one, it is important to engage a solicitor who is experienced in this particular area of law. Mellor Olsson has been independently recognised by Doyle’s Guide as a leading firm in estate litigation. Get in touch with a member of our team today on (08) 8414 3400. 

This article was written by Senior Associate, Victoria Gilliland.  

Practice Area: Wills & Estates , Court Litigation & Dispute Resolution

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