On 26 February 2015, Master Sanderson of the Supreme Court of WA handed down an interesting inheritance decision, awarding Olivia Mead $25 million out of the $45 million estate of her late father, mining heir, Michael Wright.
Olivia Jacqueline Mead had been left up to $3 million from the estate, estimated at more than $1 billion, but could not touch it until she was aged 30.

The 19-year-old challenged the Will in the Supreme Court of Western Australia last month, suing the executor David Lemon.

Ms Mead brought an application to the probate registry of the Supreme Court, claiming that she had not been adequately provided for under Mr Wright’s Will.
 

In light of this decision, the article below contemplates the very matters which a court can consider when faced with the issue of an adequate provision being made under a Will.

Family Provision Law

The law of family provision allows a court to go behind the wishes of a testator to vary the provision made by the Will of a deceased person.
This legislative framework is designed to enforce the moral obligation of a testator to use his or her testamentary powers for the purpose of making proper and adequate provision after the testator’s death for the support of the testator’s spouse and children.
Under the Family Provision Act, a child of the deceased person is permitted to claim provision out of the estate of a deceased person, where their support and maintenance are inadequately provided for by the Will of the deceased.
 
The court has a wide discretion in determining the amount of any award as a recent WA decision illustrates.
The consideration of all applications is a two-stage process.
 

The court will have regard, among other things, to:
1. The applicant’s financial position;
2. The size and nature of the deceased’s estate;
3. The co-operation and support given by the applicant in the conduct of the deceased’s business and affairs;
4. The encouragement of the applicant by the deceased to base the applicant’s lifestyle on the understanding that the applicant would inherit certain property;
5. Any service rendered by the applicant to the deceased;
6. The fact that the applicant has a dependent child;
7. The totality of the relationships between applicant and the deceased; and
8. The totality of the relationships between the deceased and other persons who have legitimate claims upon the estate of the deceased.

 

In Australia, as evidenced by Master Sanderson’s decision, there seems to be a clear trend in recent years to be far more generous to adult, able-bodied children in general.

Estate Value

The value of the estate is significant because the court has to consider what ‘proper maintenance’ is. Accordingly, where the testator’s estate is a large one, as it was in this scenario, the court will be justified in making provision to meet contingencies that might have to be disregarded where the estate is small.
Should you be in the position of being left out of a Will, or believe that a Will has not left you with adequate or proper provision, or if you require assistance to draft a Will that leaves little scope for it to be contested, please don’t hesitate to contact us.

Bruce Havilah

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