Family Provision Claims - Succession Act - Factors Considered In Family Provision Claims

Family Provision Claims – Succession Act – Factors Considered In Family Provision Claim Sham Marriage, Estranged Children and Dementia



Family Provision Claims – Succession Act – Factors Considered In Family Provision Claim Sham Marriage, Estranged Children and Dementia

In cases where a person dies and does not make adequate provision for a family member in their will, an eligible person is entitled to bring a family provision claim for further provision under section 41 of the Succession Act. Such a claim was made in the 2007 case of Manly v The Public Trustee, by the wife of the deceased who claimed that she should be entitled to the whole of the estate, instead of sharing it with the deceased’s children. The court concluded that there were not enough reasons provided by the widow to justify the court altering the provisions of the Will.

The Facts

The deceased in this case (Mr Manly), had been 83 at the time that he died in 2005. He had three grown sons aged 55, 57 and 61 from his first marriage and a Filipino wife (the Applicant) aged 53 at the time the case was heard. Mr Manly’s three sons and the Applicant were each left specific items of modest value in his will, as well as an equal share of the residual of the estate including a cash sum of $106,266.77 and the house shared by Mr Manly and the applicant, worth $370,000. The Applicant argued that she should receive the entire estate and Mr Manly’s sons opposed the application.


Mr Manly’s sons had stayed with their mother when he had separated from her in 1953 and he had provided no financial support, with the court stating that he had “effectively abandoned them”. He made no attempt to re-establish a relationship with them until 1987 when they were well into their 30’s and he was 65. Mr Manly and his sons then kept in contact via cards and telephone calls as well as occasional visits (as they all lived in other parts of the country).

There was evidence of the developing nature of the relationship between Mr Manly and his sons by their inclusion in each of his succeeding Wills over the next 15 years.

Sham Marriage?

The Applicant and deceased married in 2001 at the respective ages of 47 and 79, after meeting in the Philippines. Prior to the marriage and the Applicant’s subsequent move to Australia, she had been on contract as a Nurse in Saudi Arabia and had no knowledge of the existence of Mr Manly’s children.

The wedding was held at the Southport Magistrates Court with the only people in attendance being one of the deceased’s sons with his wife and children. There was evidence given to support claims by the sons that none of them had been aware of the wedding plans and that the attendance by one son had simply been due to a visit to his father coinciding with the wedding, about which his father had simply said he “had a wedding to attend” without specifying that it was his own wedding.

The court concluded that the marriage was the result of an agreement between the applicant and the deceased whereby she would utilise her skills as a trained nurse to care for him while his health was diminishing and in return he would marry her, entitling her to reside in Australia and receive his Veteran’s pension.

Interestingly, this was not held to be a “sham” but rather a “marriage of convenience to both sides”.

Additional Considerations

The finding that the marriage was merely a mutually beneficial agreement, led the Judge to state that the credibility of the Applicant was very questionable, given her claim that her move from the Philippines was due to the love between her and the deceased, which was clearly not true. It was therefore stated that it could not be believed that the Applicant had any real expectation of receiving benefits above and beyond the right to residency, the Veteran’s pension and perhaps a quarter share of the estate which at the time of her moving was significantly more modest.

Health Concerns

The applicant argued that she was entitled to further provision due to the extensive care she provided to the deceased particularly as he developed dementia and became irritable and aggressive towards her, while being so dependent on her that she was unable to leave the house for weeks at a time. The Judge held that this was supported by the evidence.

The applicant also claimed to be suffering from various health issues which would prevent her ability to earn an income in the future. The Judge was not satisfied by the evidence that this was the case. She also received the Veteran’s Widow pension which covered her outgoing expenses and allowed free medical care.

One of the deceased’s sons had a viral infection from which he would never fully recover as well as the need for a hip replacement costing $15,000.

Another of the deceased’s sons had been retrenched from his job due to health problems and was on a disability pension. He required a knee replacement worth $38,000 and had no prospect of obtaining employment. He also had a disabled daughter with significant medical expenses as well as a diabetic and asthmatic wife with high medical expenses.

Decision of the Court

Ultimately the court held that the applicant was not entitled to further provision. The main reasons for this were that the “arrangement” between the applicant and deceased had a bearing on “the totality of the relationship” between them and that essentially the applicant had “received what she bargained for”. The short length of the marriage was also relevant, as well as the fact that the main asset of the estate (the house) was acquired by way of gift to the deceased from his brother and therefore no consideration was provided by the applicant. Further it was necessary to look at the poor financial position of the sons as well as their legitimate claim on the estate regardless of the 34 years of estrangement.


Perhaps one of the most relevant statements in the case by the Judge was in relation to the costs involved in pursuing such proceedings:

“I note in passing that if all costs were allowed out of the estate, approximately 40 percent of the estate has been expended on legal costs associated with these proceedings.”

Accordingly it was suggested that parties and legal advisors think carefully before embarking on such proceedings where the estate is so modest.

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Brisbane QLD 4000

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