The recent Queensland Court of Appeal decision of Abrahams v Abrahams [2015] QCA 286 has highlighted the uncertainty and difficulties for an applicant when making an application for further provision against a deceased estate.
In Abrahams, a claim for further provision was made in the District Court by the Public Trustee on behalf of the deceased’s disabled son (“the Son”), who had severe down syndrome and had not been left any gift in his father’s Will.
The parties (being the executor and the Public Trustee) reached an out of Court settlement and agreed that the disabled Son would receive $140,000 from the estate of approximately $440,000. The parties then made the necessary application to the District Court to sanction the agreement.
At first instance, the judge declined to sanction the agreement because he was not satisfied the Son had need of a magnitude of $140,000. In his opinion and in light of the Son’s limited abilities, his needs were adequately met by his current arrangements, whereby he was living in a 24 hour care facility, funded by his Disability Support Pension and other Government funding.
The Public Trustee appealed the decision of the judge on behalf of the Son.
On appeal, the Court of Appeal overturned the decision and sanctioned the agreement to make provision to the Son in the amount of $140,000.
The Court of Appeal considered the role of the Court when considering settlements reached between the parties. The Court confirmed that if the parties in family provision proceedings agree to settle and there are no other interests involved, ordinarily the Court should make the orders in accordance with what the parties are seeking. That is unless it is clear that there is no jurisdiction to make the orders sought, for example, if the applicant is not a eligible person or has not established any financial need.
The Court of Appeal confirmed that on an application for sanction, the Court is not to hear the matter as if it were a contested application. Instead, if the Court is satisfied on the evidence before it that the settlement falls within the bounds of a reasonable exercise of discretion, then the Court should make orders to give effect to the settlement.
This decision recognises the important right of parties to family provision proceedings to resolve disputes out of Court, if possible, and is an important reminder of the requirement for applicants to always establish eligibility and financial need if they are to have any chance of succeeding on their claims.
For more information or advice in relation to estate disputes, please contact us today.
This article was posted by the Bennett & Philp marketing team on behalf of the Estate Litigation practice group. The article was authored by a former team member while they were under the employ of Bennett & Philp Lawyers. Final revisions were made by a Director in charge prior to publishing.
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