Family provision claims made by a de facto partner and a disabled adult child
In Menzies v Perta; Perta v Perta [2021] VCC 941, the deceased’s de facto partner and daughter (from a previous relationship) issued proceedings in the County Court of Victoria for further provision from the deceased’s estate. The deceased’s last Will dated 17 May 2017 appointed his son as legal executor of his estate. The Court had to consider whether the de facto partner and adult child were eligible to bring a claim and if so the amount of provision that should be made for their proper maintenance and support. The Court was also asked to consider whether the executor son should personally pay the costs of the proceedings due to his failure to engage in the process by defending the claims.
The deceased died on 2 September 2019 aged 82 years old. He was survived by his de facto partner (who he was in a relationship with for 20 years prior to his death) aged 68 years old and his adult children from previous relationships namely his daughter aged 57 years old and his son.
According to the deceased’s Will, he left a sum of $50,000 to his de facto partner and the balance of the estate to his son. He made no provision for his daughter.
Probate was granted to the executor son on 21 October 2019.
The deceased’s estate was valued at approximately $1,224,000. The main asset of the estate comprised of the a property which sold for $1,152,000.
The de facto partner and daughter issued proceedings for further provision from the deceased’s estate.
To support their claims the de facto partner filed three affidavits and the daughter filed two affidavits. The executor son did not appear at Court, nor did he file any evidence in response to the affidavits filed by the de facto partner and daughter. In the circumstances, the Court made findings based on the evidence that was submitted by the de facto partner and daughter.
De facto partner’s Claim
The de facto partner argued that she was an eligible person being the domestic partner of the deceased and at the time of death the deceased had a moral duty to provide for her proper maintenance and support.
The Court was satisfied that the de facto partner lived with the deceased on a genuine domestic basis continuously from 1996 to the date of the deceased’s death. The Court was also satisfied that the deceased owed a moral duty to provide for his de facto partner and he failed to make adequate provision for her proper maintenance and support. The Court emphasised that it was well recognised that as “a general rule, a deceased has a moral duty to provide their spouse with the security of a home, sufficient income to live independently and a nest egg to guard against contingencies.” The Court ordered the amount of $550,000 (in addition to the existing $50,000 legacy) be made to the de facto partner.
Adult Daughter’s Claim
In order for an adult child to be successful in challenging a parent’s Will, adult children need to show a financial need. An adult child is required to demonstrate the degree to which he or she is not capable by reasonable means of adequately providing for their own proper maintenance and support. However, this differs to an adult child who has a disability.
The daughter submitted that she was eligible person on the following basis:
- that she was a child of the deceased with a disability within the meaning of paragraph (b) of the definition of “eligible person” in s90 of the Administration & Probate Act 1958 (Vic) (the Act); or
- in the event the Court did not consider her to be a child with a disability, in the alternate, she claimed to be a child within the meaning of paragraph (f) of the definition of “eligible person” in s90 of the Act.
If the daughter is an eligible person under paragraph (f), rather than paragraph (b), then the Court must also take into account the degree to which she is not capable, by reasonable means, of providing adequately for her own proper maintenance and support.
The daughter tendered letters from her doctors evidencing her disability. She also submitted that she was not financially secure and was currently on a disability support pension receiving $952 per fortnight, had approximately $41,000 in savings and no superannuation. In addition, she was not in good health suffering from depression, anxiety, osteoarthritis and degenerative disc disease of the cervical spine. The daughter also submitted that she was on various medication including taking Endone twice per day to manage her pain.
The Court accepted that the daughter had significant needs due to her multiple health conditions and housing insecurities. It was also accepted that the daughter would live until she is eighty years old and therefore remains incapable of earning any income throughout that period. There was no evidence filed by the deceased’s son to show his competing need.
The Court was satisfied on the evidence provided by the daughter’s medical practitioner and psychologist and her own evidence that she was a child of the deceased with a disability within the meaning of paragraph (b) of the Act. Therefore, the Court was not required to take into account the degree to which the daughter was not capable, by reasonable means, of providing adequately for her proper maintenance and support. However, the Court noted that the daughter was receiving support from her mother and the Court may still take this factor into account and did so.
It was also noted by the Court that the de facto partner spouse had the paramount claim. However, given the size of the estate there was sufficient funds to accommodate the daughter’s claim as well.
The Court ordered a sum of $400,000 be made to the daughter.
Costs against the executor son
It was submitted by the de facto partner and the daughter that the son should be ordered to pay the costs of the proceeding personally on the basis that as an executor, the son was under a duty to respond to their claims but he failed to engage in the process.
The Court referred to the case of Re Flavel; Application by Lipshut [2018] VSC 228 at paragraph [35] where Her Honour stated:
“… it is incumbent on … [the executor of the estate] to assess the evidence in an impartial and objective manner, act properly and reasonably in conducting the litigation and, if appropriate, compromise the proceeding. … .”
The Court was satisfied that the son failed to comply with his duty as an executor of an estate to act properly and reasonably and this necessitated a trial of the proceeding and rendered a compromise impossible. The Court commented that by the executor son’s failure to appear at the proceeding he has disregarded his duties as executor and therefore has acted unreasonably and lost his entitlement to indemnity out of the estate. The Court ordered that the executor son personally pay the daughter’s costs of the proceeding fixed in the sum of $22,159.80 and pay the de facto partner’s costs of the proceeding fixed in the sum of $34,865.38.
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