Should Your Children Receive Equal Inheritances?

Provided that a will is valid, family provision provides the only avenue for contesting a will. A child may contest their parent's will where it does not provide 'adequate' or 'proper provision for their 'maintenance, education or advancement in life'. However, a child cannot contest a will merely because they have not been treated equally.

With respect to fairness and equality in family provision, the Court has noted the following:

• The concepts of fairness and equality are not conditions for relief in family provision.
• The Court is not authorised to usurp a deceased's testamentary intentions to achieve an overall fair distribution of the estate.
• It is not the role of the Court to achieve equality between the various beneficiaries.
• While equality may be excepted, a parent is under no obligation to equalise the distribution of their estate between each child.

In effect, as the below cases demonstrate, the outcome of a family provision claim will depend on the conduct, circumstances, financial resources and earning capacity of the appellant, the size of the estate, the competing claims and any other relevant circumstances. A claim will not be successful merely because the will does not treat the beneficiaries equally.

This case illustrates that the 'adequate' provision does not necessarily require equal provision. Rather, each case turns on its facts and whether or not adequate provision has been received depends on the size of the estate, the appellant's circumstances, the competing claims and any other relevant factors.

The Court dismissed Paul's application for greater provision, noting the following:

• Paul, had received substantial financial assistance from the deceased during her lifetime particularly in respect of his divorce, court proceedings and disciplinary proceedings concerning his entitlement to practice medicine.
• The deceased, in a memorandum, had justified the unequal distribution given the significant financial support provided to Paul during her life and Paul's poor financial management skills which risked that any lump sum provided to him would be squandered.
• While the estate was large enough to accommodate further provision, it would be at the expense of Helena who had been a dutiful daughter and received limited financial assistance from the deceased during her lifetime.
• Although Paul was in poor financial circumstances. He was 71, restrained from practising as a medical practitioner (potentially forever) and had pressing debts. The will provided Paul with a home and annuity, which would last another three years. Thus, Paul had received adequate provision.

This case emphasises the importance placed on the respective financial needs of the applicants, defendants and other beneficiaries. Notably, the unequal distribution of an estate will be readily upheld when the financial circumstances of the beneficiaries justify it.

The Court held that although Jill might rightly feel a sense of grievance or hurt as a result of the estate's unequal distribution, she had failed to establish that she had not received adequate provision. In determining this, the Court noted the following:

• Jill was in secure financial circumstances. She was 74, in good health, and although she did not have any ongoing earning capacity, she had a house, a car, superannuation entitlements, and a pension. While she had some debts, including a mortgage, these did not account for a significant portion of her total assets.
• Susan, however, did not own any real estate, vehicles, or any other assets of real value, and she had various ongoing medical conditions. Accordingly, Susan was clearly in more parlous circumstances.

Overall, given the small size of the estate and the respective financial needs of the sisters, it was held that Jill had been adequately provided for.