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Sibling rivalry over inheritance: adult son’s claim dismissed for obstructive and unreasonable behaviour


Attwood Marshall Lawyers Estate Litigation Lawyer Lily Prasad examines the rejection of a belated application from a son seeking further provision from his late father’s estate. The court deemed the son’s behaviour unreasonable and found no valid reason to favour his claim over that of his five siblings.

A Queensland court has denied a son’s request for a late inheritance claim. The son had been living rent-free in one of his deceased father’s properties, which made up a significant portion of the estate, for over 20 years.

The case focuses on the fallout between a large family when a parent passes away without a Will and has some important lessons for individuals seeking a greater inheritance when their circumstances are not strong enough to support the claim.

The son’s claim for further provision was dismissed on the grounds that there was no justification for favouring one sibling over the others. The judge also gave weight to the fact that the claim was filed outside of the court’s strict time limit and the applicant’s failure to engage in any attempts to negotiate an out of court settlement.

Here, we dissect the nuances of the case and explore the court’s key considerations in dismissing the application, including the applicant’s unconscionable conduct, the fact the estate was not very large, and the applicant’s poor prospects of success.

The case: Day v Peake [2023] QDC 178

The applicant, Lloyd Day, is the adult son of the deceased who died without a Will on 25 July 2020. The deceased, Desmond Gunston Day, was survived by six of his seven children.

The deceased’s eldest child, Rosemary Peake, was granted letters of administration on 2 August 2021 to take on the responsibility of administering the deceased estate. Her brother, Scott Day, made an application for further provision from the deceased’s estate on 19 October 2021. Lloyd joined that application on 30 March 2022. Both applicants lived in the two adjoining properties that made up the deceased’s entire estate, valued at a total estimate of $440,000.

Given the application was not filed within the usual deadline of nine months from the deceased’s date of death, the applicants needed leave from the Court to proceed.

Scott did not proceed to trial with his application, but Lloyd argued that he should receive the benefit of the properties to the exclusion of his other siblings.

Rosemary defended the claim, arguing that the surviving children (including herself) should receive an equal share of the estate, under the rules of intestacy (the rules that apply when someone dies without a Will).

Key factors for allowing the claim to go ahead, or not

The court had to decide whether leave should be granted to allow the applicant to proceed with the application for further provision that was filed out of time.

In such cases, the onus lies on the applicant to establish sufficient grounds for taking the case outside the time limit. Four factors that can be relevant to this exercise of discretion include:

  1. Whether there is an adequate explanation for the delay;
  2. Whether there would be any prejudice to other beneficiaries;
  3. Whether there has been any unconscionable conduct by the applicant; and
  4. The strength of the applicant’s case.

We look at each of the factors more closely below:

Did the applicant give an adequate explanation for the delay?

Firstly, Justice Clarke was not persuaded that there was an adequate or reasonable explanation for the delay and believed the applicant had likely joined in his brother’s proceedings merely to further his own interests.

Would the claim prejudice the other beneficiaries?

The six surviving adult siblings – Rosemary, Leanne, Narelle, Brett, Paul and Scott – were each competing beneficiaries of the deceased’s estate.

Brett’s financial affairs were being administered by the Public Trustee given his serious ailments including schizophrenia, a mild intellectual disability and an acquired brain injury. Brett required extensive care in supported accommodation. Justice Clarke was prepared to accept that Brett has substantial ongoing needs and should receive provision out of the estate.

Paul was injured while serving in the Australian Army and was consequently debilitated mentally and physically, living in rental accommodation and in receipt of a pension. The judge concluded that Paul has a need for provision out of the estate.

Little was known about the financial position of Leanne and Narelle, however the judge noted that they most likely have equally competing needs.

It was confirmed that Scott withdrew $45,000 from the deceased’s bank account shortly after his death and that sum no longer formed part of the deceased’s residuary estate. Scott is unemployed and receives Jobseeker payments. He had also previously attested to owning vehicles, shares, a shed, household contents and 16 firearms. Having discontinued his application, the judge was satisfied that Scott did not seek further provision out of the estate, nor was he entitled to it.

The respondent, Rosemary, was 71, works part-time and experiences ill-health, as does her husband.

The applicant, Lloyd, was a 58-year-old single man with no dependants who works sporadically and has a medical ailment relating to his heart. He has lived in his parents’ properties rent-free since about 1999.

Justice Clarke was satisfied that there had already been considerable prejudice caused to the other beneficiaries, because of Lloyd’s opposition to the administration of the estate and the consequent litigation which caused liabilities and costs that should not have been incurred.

How did the applicant behave throughout the process?

The judge found that Lloyd had engaged in unconscionable conduct, given he obstructed Rosemary’s duty to administer their father’s estate, including thwarting her attempts to enter the properties to conduct an inventory.

Did the case have merit?

Finally, the applicant’s prospects of success were very poor, to the point of being futile.

In determining the strength of the applicant’s case, the court is required to assess:

  1. Whether on intestacy, adequate provision has not been made for the proper maintenance and support of the applicant; and
  2. If yes, what order for provision may be made in the exercise of discretion.

In determining whether adequate provision has been made for the proper maintenance of the applicant, the court may have regard to the ‘moral claim’ of an applicant, considering the ‘totality of the relationship’ in the provision of care and financial or other contributions.

The applicant claimed to have contributed substantially to the deceased’s care, as well as providing substantial financial contributions by paying rates, insurance, and utilities. The applicant also claimed to have maintained and performed extensive labour on the properties.

However, the applicant did not provide any evidence to support his assertions. Further, it was independently established that the statements could not be true as the rates and insurance continued to be paid out of the deceased’s bank accounts while the deceased was in a nursing home and after his death.

Contrary to the applicant’s claims that he had contributed to the maintenance of the properties, an independent valuation confirmed that the house was in very poor condition and not considered to be legally inhabitable due to mould and other defects.

Bank records also confirmed that the deceased’s funds had been used to pay for things that only Scott Day and the applicant could have benefited from including $85,000 worth of groceries, alcohol, car registration, fuel, vehicle expenses, entertainment, and cash withdrawals.

Bid unsuccessful

Justice Clarke found the applicant to be an unreliable, evasive, and non-responsive witness and did not accept his moral claim or need for further provision from the deceased’s estate.

The judge stated that a wise and just testator would have likely made equal provision to all surviving children, and being the default position, that should be the court’s order.

Justice Clarke dismissed the application and also made an order requiring written submissions within 14 days for orders dealing with how Scott Day and the applicant were to vacate the property, how the properties were to be prepared for sale (if at all), how the proceeds were to distributed to the beneficiaries and whether the applicant and Scott Day should have to pay the outgoings, liabilities and costs of the litigation out of their share of the estate.

Attwood Marshall Lawyers – helping you understand your rights in estate disputes

Succession Law and contesting Wills are complex issues, and when someone makes a family provision claim, emotions are generally running high. It is essential to get the right advice from the start and have an experienced lawyer guide you through the dispute resolution process. Trusting an experienced lawyer often means they can help carry the burden and reduce family conflict as much as possible.

For expert advice on your rights in estate disputes, please get in touch with our Estate Litigation Department Manager Amanda Heather, on direct line 07 5506 8245, email or call 1800 621 071 any time.

Disputes can be drastically minimized, or avoided altogether, if individuals have a valid Will that appoints an executor and leaves clear instructions on how their estate should be dealt with.

For all your estate planning needs, please contact our Wills and Estates Department Manager Donna Tolley, on direct line 07 5506 8241, email or free call 1800 621 071 anytime.

Our team are available for appointments at any of our conveniently located offices at Robina Town Centre, Coolangatta, Southport, Kingscliff, Brisbane, Sydney, and Melbourne.

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Lily Prasad

Estate Litigation

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The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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