Boseley v Stowe [2012] WASC 329

The Supreme Court of Western Australia has taken the unusual step of awarding to a mother the entire estate of her deceased son.  

As Master Sanderson held, the case turned on its own facts, but unlike other States, the Inheritance (Family and Dependants Provision) Act (WA) 1972 does not make any qualification upon the ability of a parent to claim the benefit of that Act. For example, in South Australia and Queensland, the parent must satisfy the Court that they either cared for or maintained the deceased child either at the date of death or for some portion of the deceased’s lifetime.  

We are aware of only five reported decisions across all Australian jurisdictions which have considered this issue. Therefore, the matter of Boseley is a further indication of what may become an increasingly common area of inheritance litigation as the Australian population ages and the possibility of parents outliving their children increases.  

The Court considered the following facts:

  • Mr Boseley died a bachelor, having never married and having no dependants.
  • Mr Boseley left the entirety of his estate equally to the Salvation Army (Western Australia) Property Trust and Australian Red Cross Society (West Australian Division). Importantly, the Court found that Mr Boseley had little or no close relationship to these charities.
  • Mr Boseley was found to have acquired most of his estate from certain arrangements entered into with his father following his father’s separation and divorce from his mother, Mrs Boseley.
  • Mrs Boseley was dissuaded by her former husband, deceased son and surviving son not to make a claim for a division of matrimonial property, including a family farming enterprise, so that the deceased and his brother could continue to undertake that enterprise with their father.

As Master Sanderson held, that Mrs Boseley‘s forbearing to seek a property settlement with her husband was a substantial benefit to the deceased and it was hard to imagine that if she had pursued a property settlement she would not have been entitled to a portion of the farm. What was held to be decisive was Mrs Boseley’s remarkably selfless contribution to her son’s estate. In the absence of other competing claims, it was appropriate that the deceased should have provided for his mother in his Will. The deceased had a moral obligation to provide for his ageing mother who had modest assets and survived on an aged pension.

Comment - Boseley’s case is an important contribution to inheritance claims where parents provide for their children during their lifetime but their children unexpectedly predecease them leaving assets not to their benefacting parents but, as in this case, to unrelated charities or other “strangers” in the deceased’s life.