Hynard v Gavros  SASC 42
The South Australian Supreme Court considered whether the adopted daughter of the deceased was entitled to further provision from her estate.
The deceased died on 28 September 2012. Pursuant to her Will, the deceased made some monetary bequests and gifted the balance of her estate to her sister. The daughter of the deceased received a bequest of $2,500 and so sought further provision from the court.
The daughter was adopted by the deceased and her husband when she was three days old. They separated when the daughter was eight years old and she subsequently lived on a full time basis with her father who relocated them both to Queensland. The daughter always maintained a relationship with the deceased, visited and lived with the deceased in Adelaide on various occasions. The deceased and the daughter also spoke regularly by telephone.
When considering whether it was appropriate for the daughter to receive further provision from the estate, the court looked at the relationship between the daughter and the deceased and found that there was no evidence to suggest that the relationship had ever broken down. The court then analysed the financial position of both the daughter and the deceased’s sister, including their employment situations, personal assets and liabilities, the financial position of their respective spouses and the personal circumstances of their respective dependents.
The daughter’s evidence was that she was a student, who received a minimum income from Centrelink. She owned a house inherited from her father which was subject to a mortgage. The deceased’s husband was in stable employment and they had a combined superannuation balance of approximately $66,000. The daughter had a 10 year old son who was diagnosed with a developmental and psychological condition, which required regular medical care. Her son’s condition also required him to attend a school with a special education unit which was a considerable distance from their home, causing her to incur additional expenses. The court found this to an important consideration when determining whether adequate provision was made for the daughter in the Will.
The deceased’s sister was 63 years old and worked part time. She also owned a home in her sole name which was subject to a mortgage and had various liabilities.
Upon consideration of these facts the court considered the position of the deceased and determined “what a wise and just person would have done at that time with full knowledge of the relevant circumstances.” It was found that the deceased had failed to satisfy her moral duty to her daughter and the provision made for her was not “proper” by reference to what the daughter “ought to have in the circumstances and not what she needs.” It was without good reason for the deceased to prefer the interests of a sibling over a child. Accordingly, the Court ordered that the daughter receive 55% of the residue of the estate, with the sister to receive the balance.
Comment: Had the deceased received considered advice regarding her potential duty to provide for her adopted daughter, this case may not have been before the court. Of course a moral duty to provide for a particular beneficiary is not enough on its own and the outcome in this case weighted heavily on not only the circumstances of the relationship between the deceased and the daughter but the personal and financial circumstances of both competing beneficiaries.