The recent decision of Hansen v Hennessey [2014] VSC 20 dealt with Part IV claims by three adult children of the deceased. The deceased had died from pancreatic cancer approximately 6 months after being first diagnosed, leaving 5 adult children. By her last Will, the deceased:

  • made a bequest of $40,000 to her youngest child;
  • made several smaller bequests, including a gift of 2 motor vehicles to the 3 adult children; and
  • left the residue of the estate (estimated by the Court to be $122,638) to the executor, the deceased’s third child.

The 3 children claim that the deceased made essentially no provision or only very small provision for them by her last Will because one of the motor vehicles gifted to them was not a property of the deceased, and the other motor vehicle was of no commercial value. They claimed that the provision was inadequate and sought an order that further provision be made of $25,000 each without disturbing the distribution already made of $40,000 to their youngest sibling.

The Court determined that the deceased did not have any responsibility to make provision for the maintenance of 2 of the 3 adult children on the basis that their actions amounted to a repudiation of the relationship with the deceased and any responsibility owed to them by the deceased. In particular, the Court referred to:

  • their letters to the deceased refusing further contact;
  • their maintenance of that stance notwithstanding the deceased’s further attempts to contact them and her serious and ultimately fatal illness; and
  • their failure to prove that these actions were the result of the deceased’s abusive conduct.

On the other hand, the Court held that the deceased did have a responsibility to make provision for the maintenance of the other sibling on the basis that:

  • he did not expressly reject the deceased;
  • he was a substantial presence in the deceased’s life;
  • he had a close relationship with the deceased in the six months they lived together shortly prior to her death; and
  • the deceased had shown a consistent concern for his welfare in the year since his breakdown when his marriage failed, resulting in financial assistance to him, in particular to ensure that he had somewhere to live.

The Court held that the provision to him under the Will was inadequate and considered that an appropriate amount of further provision would be $19,000, being $25,000, less $3,000 that the child acknowledged as owing to the deceased, and less $3,000 for his failure to maintain the motor vehicle, which might otherwise have been a more substantial asset.

To find out how Armstrong Lawyers may assist you in relation to Estate Planning or Will Disputes, feel free to browse our Wills and Estates page.