The Supreme Court of South Australia case of Butler v Tirburzi decided a claim made by a 66 year old adult daughter who successfully argued that she had been left without adequate provision from the estate of her father.

In summary, the facts of the case were as follows:

1. The testator (will-maker) died aged 88 years survived by his daughter and son.
2. The testator was divorced and never remarried.
3. The net estate disclosed by the executor when obtaining the grant of probate was $1,536,969.85.
4. By his will, the testator gave $50,000 to each of his two children, made a gift of the contents of the shed estimated at $5,000 to his daughter, and also made other small gifts of money which were not contested.
5. The majority of the estate was gifted to a 37 year old friend who described her relationship to the testator as being akin to a “daughter-like” relationship after meeting the testator in a supermarket where she worked.

The daughter made an application to the Supreme Court pursuant to the Inheritance (Family Provision) Act that further provision be made for her out of the estate. The daughter in this case was a biological child of the testator and therefore an eligible claimant under the provisions of the legislation. The purpose of the legislation is essentially to permit the court in certain circumstances to alter the provision provided in the will to produce a result that it consistent with the purpose of the legislation.

The Court found that the friend was not an honest witness and deliberately mislead the Court on at least two occasions. Significantly she did not return for the balance of her cross-examination.

The Court noted that the daughter’s work history had not provided her with any form of savings or financial security and her financial position was poor. At times she had been in receipt of Centrelink benefits and had accessed her superannuation due to financial hardship. She had accumulated debts to the tax office, owned no real property (e.g. a house), and her superannuation was modest. She would be reliant on the age pension. She also had significant and long-standing health issues.

The Court ordered that provision be made out of the estate to the daughter in the sum of $725,000; i.e. approximately 50% of the net estate.

This case highlights the importance of obtaining legal advice in circumstances where you consider that a will does not adequately consider the competing claims on an estate.

Contact Us

If you have any questions about contesting a will or inheritance claims, contact us on 08 8523 8400 (Gawler) or 08 8211 6500 (Adelaide) to arrange an appointment for an initial no obligation consultation. Alternatively, send an email to legal@rudalls.com.au and we will contact you.