The Facts

Parents plan to distribute wealth between four children

A husband and his wife had four children. Conveniently, they also owned four properties.

The parents decided to give their children one property each as their inheritance, with some financial adjustment to account for the difference in value between the properties.

The two daughters were each to receive a property while the parents were still alive, while the two sons had to wait until after their parents died to receive their share.

Deed of family arrangement and threat of disinheritance

The parents created a deed of family arrangement the four children were all required to sign, agreeing that they would not challenge the property transfers to take place under the terms of the deed or challenge their parents' wills in any way after they died.

One daughter said that she would not sign the deed until she obtained independent legal advice. However, her father told her that if anyone obtained their own legal advice, the deal would be "off the table" and he would cut that person out of his will.

The other daughter also confirmed that the father had insisted the children accept the deed without legal advice and without compromise - "take it or leave it".

Threat of eviction and daughter's precarious marriage

The daughter who initially resisted signing the deed was living at the property she was to inherit. She claimed that she came under considerable pressure to sign the deed and was told by her father's solicitor: "Sign the contract or leave the property. You could be evicted from the property if necessary."

It was particularly significant that the daughter did not obtain legal advice about the deed transferring the property to herself and her husband, rather than to her alone. The deed was structured in this way even though it was commonly known within the family that the daughter's marriage was precarious.

Nevertheless, after a delay of several months, the daughter signed the deed and the property was transferred to her and her husband.

Soon after the deed was signed, the daughter's marriage did indeed break up and the property she had received became part of the matrimonial asset pool, to be divided between the ex-spouses.

Father dies and daughter brings family provision claim against estate

After the father died, the daughter who was reluctant to sign the deed brought a family provision claim against his estate, claiming that the deed she had signed was voidable because her signature was procured by undue influence, unconscionable conduct and duress.

She argued that as she did not receive legal advice about the implications of the deed, she could not have released her rights to make a family provision claim by signing it.

In bringing the family provision claim, the daughter claimed her father had not made adequate provision for her proper maintenance, education or advancement in life.

Daughter's poor health disputed by son

The daughter suffered from multiple health problems which began when she was a child and continued through her adolescence and adult life.

While she provided the court with considerable evidence of her medical conditions, her brother, who was the executor, disputed her allegations of poor health, saying he had no knowledge of the ailments she claimed to have had as a child or teenager and stating that he did not believe she had any of the illnesses she attributed to her adult life.

It was up to the court to determine whether, in all the circumstances, the daughter should receive anything more of her father's estate.

CASE A

The case for the daughter

CASE B

The case for the son as executor
  • I was coerced and intimidated by my father not to obtain proper legal advice.
  • It's true that I signed the deed. However, given the lack of legal advice, I was not in a position to make any of the promises contained in the deed.
  • Specifically, I did not understand the meaning of the "release" not to bring a subsequent claim against the estate.
  • I was threatened with eviction from my home if I did not accept the early inheritance and sign the deed, so my signature was obtained under extreme duress.
  • The provisions of the deed were unfair given the widely differing valuations of the four properties.
  • My father unfairly forced me to sign the deed to fulfil his financial plan, even though he knew I was in a vulnerable position due to my marital problems.
  • I have suffered from poor health since childhood and now have multiple ailments, so I will continue to incur significant expenses for ongoing medical treatment.
  • My sister has been sufficiently provided for, particularly since she ignored our parents and did not regularly visit or attend family gatherings.
  • She also did not contribute to the family business operation to the same extent as the rest of us.
  • When my sister finally signed the deed, she did so with her own solicitor.
  • While my sister claims to have suffered from poor health since childhood, I do not believe she has any of the illnesses she claims to have.
  • Our parents' intention in creating the deed was to distribute their wealth equally among their children.
  • The whole purpose of the deed was to prevent any challenge to our parents' wills and to release our rights to apply for a family provision order.
  • By signing the deed, my sister accepted the property where she lived as an early inheritance and agreed not to make any further claims on the estate. She is bound by the terms of the deed and her family provision claim should be dismissed.

So, which case won?

Cast your judgment below to find out

Joshua Crowther
Will disputes
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.