The Facts

Arranged marriage followed by emigration to Australia

A woman died in 2016 at the age of 73. In 1958, at the age of 15, she had had an arranged marriage in Italy to a man who was nine years her senior. The couple emigrated to Australia shortly after their marriage.

The woman felt trapped in an unhappy marriage and blamed her husband for taking her away from Italy and bringing her to Australia. Nevertheless, the couple had three children: a son born in 1961, a daughter born in 1965 and another son born in 1966.

The woman had a long-running extramarital affair which commenced in 1977 and came to the attention of her husband in 1981. Relationships within the family became acrimonious.

Younger son takes father's side in Family Court proceedings

Proceedings were commenced in the Family Court in 1985 and the marriage was dissolved in 1988, with further disputation over property continuing after that date.

In 1986 the woman ordered her daughter and younger son to leave the family home. Her older son had already moved out to live independently by this time. The two younger siblings were assisted by their uncle, their father's brother.

The younger son took his father's side against his mother and became actively involved in the Family Court proceedings, leading her to be greatly embittered towards him and resenting his actions until her dying days.

Son makes family provision claim on mother's estate

By the time the woman died, she had been reconciled to her older son and her daughter. However, she remained estranged from her younger son and had no contact with him for 19 years up until her death.

After the woman died, the younger son made a family provision claim on his mother's estate, seeking a larger share than the $330,000 he was due to receive under the laws of intestacy.

The younger son argued that his share should be $660,000, or, more modestly, $450,000, and that this increase in his share should be subtracted from his sister's share, because she was materially well off and his brother was not.

According to the younger son, he needed sufficient funds from his mother's estate to be able to buy a house large enough to accommodate not only himself, but also his partner and his uncle, who was now 87 years of age. Alternatively, he needed the funds to buy a house closer to his uncle's residence, to facilitate his care of the uncle.

His sister, as administrator of their mother's estate, opposed her younger brother's claim.

CASE A

The case for the brother

CASE B

The case for the sister
  • I require a larger share of the estate than what I am due to receive under the laws of intestacy for maintenance, education and advancement in life.
  • Specifically, I need sufficient funds to be able to buy a residence to accommodate myself, my partner and my uncle, who I continue to care for and support.
  • My uncle cared for and supported us when my parents' marriage broke up, so morally, my mother's estate should provide for his needs as well as my own.
  • My sister is wealthy and can afford to have her share of the estate reduced. She isn't looking after our uncle, whereas I am. My loyalty to him should be commended.
  • My mother resented me for siding with my father during their divorce. I did so because she had an affair which broke my father's heart and shattered the relationships within the family.
  • It's true that I was estranged from my mother for many years before she died. However, this estrangement was entirely her doing, not mine.
  • It's incorrect to claim that the estrangement between my brother and my mother was entirely her doing. He had no contact with her for 19 years and made no effort to get in touch with her. At the time of her death she didn't even know his whereabouts.
  • My mother had zero obligation to provide a residence for my brother's partner.
  • Similarly, my mother had no obligation whatsoever to provide a residence for my uncle, the brother of the man she divorced in 1988, nearly three decades before she died.
  • As my older brother can confirm, my younger brother stood between us and our uncle, thwarting any ongoing relationship we might otherwise have had with him.
  • My younger brother has taken charge of a significant amount of our uncle's wealth and used it for his own benefit. He also receives a pension as our uncle's carer.
  • My younger brother's history clearly shows him to be a grasping, greedy user of other people and their property. This claim is simply another example of that behaviour and the court should dismiss it.

So, which case won?

Cast your judgment below to find out

Ian Graham
Will disputes
Stacks Law Firm

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