Son Collects Bigger Share Of Father’s Estate – The ‘How To’ Guide

The Supreme Court handed down a decision last year that serves as a useful reminder of the principles which the court applies in determining whether to make additional provision for an adult child out of a deceased estate. There were some general facts that arose in the case which we often see arising in different family arrangements (with differing dollar values, obviously). For this reason, you should consider whether these general guidelines may be relevant to you and your family’s future if someone has, or may, pass away.

The case was Theoctistou v Theoctistou [2013] NSWSC 1487. The deceased’s son, Anthony, was left $50,000 out of his father’s estate of $919,532. Anthony, aged 59 years at the time of his father’s death, had three adult brothers who each also received $50,000. The remainder of the estate was left to the deceased’s wife of 52 years (Anthony’s step-mother). The court decided that, in addition to the original $50,000, Anthony should receive an additional legacy of $250,000 which was to be taken from his step-mother’s share of the estate.

The facts that the court identified as supporting Anthony’s claim were as follows:

(a)   Anthony had enormous debts totalling in excess of $400,000 in total;

(b)   Anthony was only engaged in part time work as a cleaner. He was unable to work on a full time basis due to a stroke he suffered several years earlier;

(c)   Anthony and his father enjoyed a particularly “close and loving relationship” prior to his father’s death;

(d)   the step-mother was in a “much stronger financial position” than Anthony; and

(d)   the step-mother had no debts of any significance.

This decision of the Supreme Court provides a helpful summary of the principles which are applied in assessing a claim – particularly by an adult child – under the Succession Act 2006 (NSW). If any of these facts sound similar to those which exist in your own family arrangement, you might want to obtain legal advice in relation to properly planning your own estate or administering the estate of a deceased family member.

The above is not intended as legal advice. You should obtain legal advice in relation to your own specific circumstances.

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