Family Provision Claim – Dependency – Adequate provision

The Family

Colin Olsen had a child, the plaintiff, with his first wife. Colin and his first wife separated after 2 years. Colin remarried and had 3 children with his second wife, Beverley. They stayed married for 56 years. Colin left his entire estate to Beverley in his will. The plaintiff made a family provision claim for $250,000 on the basis that he has not been adequately provided for in the will.

Circumstances and Needs

The Judge considered the circumstances and needs of each party. The eldest son, Marc, was 57 years old, has an HIV infection, lives alone, works one day a week, has no significant assets and receives a disability support pension. The daughter, Micheline, was 56 years old, is divorced, unemployed, receives a single parent’s pension, suffers from health issues and has two sons, one of which also suffers from health issues. The youngest son, Dean, was 50 years old, unemployed, owns his own home with his wife, earns income from renting out a room in his mother’s house and has one daughter. The plaintiff was 61 years old and ran his own legal practice with his wife. The structure of his business was considered to be financially sophisticated, being organised around a company and trust whilst paying for their personal expenses including a number of overseas holidays. The company turned over approximately $370,000 per year. The plaintiff and his wife own a number of properties. They have two sons who live with them. The Judge noted that adult sons and daughters generally have a lesser dependency and need than children. In making his decision, the Judge tried to put himself in the deceased’s shoes – what would a reasonable and rational person do in this situation? The plaintiff was successful in life. He was able to support himself and his family financially. The 3 children were not successful and they had a greater need than the plaintiff. The Judge concluded that a reasonable and rational person would have provided for the children who needed it most. The Judge dismissed the plaintiff’s claim. The will stayed as it was.

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This blog is for general information purposes only and is not intended to be legal advice. Every case has its own unique circumstances which may result in different outcomes. If you are unsure about your situation, we suggest you seek professional legal advice.