Father’s estate left to charity – but what about the son? Which case won?
Father leaves most of his estate to charities
A NSW man died in September 2018, leaving an estate of about $2.5 million.
His will left $50,000 to his only son, together with smaller gifts to two other people, with the rest of the estate passing equally to two charities. The amount to be distributed to the charities was about $1.8 million (ie $900,000 each).
Father leaves his family behind and moves to Australia
The relationship between the father and son was a distant paternal one. It was accepted to be a poor relationship, marked by distance and aloofness on the part of the father, who was absent for significant periods of the son’s life. The family lived in Eastern Europe during the son’s early childhood and the father was a medical specialist who would work away from home for three months at a time and return for a week to the family home.
During these times away, the father had an affair with another medical specialist and formed a relationship with her. The father and his new partner moved to Australia to live, leaving the young son with his mother in Eastern Europe.
Adult son emigrates to Australia
After reaching adulthood, the son spent four years in prison in Eastern Europe as a result of getting into trouble with the communist government in his country. Following his release from prison, the son moved to Australia with some help from his father, who acted as the “guarantor” for him. He lived with his father for 14 months after he arrived while he learnt to speak English.
The relationship between father and son was not a close or emotional one, despite the son wanting it to be. The son admitted that between 1994 and 2018, he only saw his father on about five or six occasions, although he spoke to him about fortnightly, and then weekly following the death of his father’s second partner in 2017. Most of the conversations were unpleasant or argumentative.
Son’s poor financial position and lack of employment
The son had previously been a mechanical fitter and was 61 years old at the time he began the proceedings against his father’s estate. He lived in rental accommodation, with few assets, little cash in the bank and a superannuation balance of $54,000.
He had little prospect of returning to the workforce due to his age and poor health. He was receiving Newstart payments fortnightly due to being unemployed.
Widely differing assessments of son’s future needs
The son submitted that he should receive provision of $550,000 – $650,000 so he could purchase accommodation, plus a further lump sum of $500,000 to cover future contingencies, including health care and the cost of living. The son sought a total provision of approximately $1.1 million, which would have left about $300,000 to each of the charities.
It was accepted by the estate that improper provision was made for the son. However, the estate argued that the appropriate amount to be given to him would be approximately $450,000 in total, being $400,000 in addition to the $50,000 that he had already received under the will.
It was up to the court to decide whether the son should receive more than $450,000 from his father’s estate.