Go to Previous Article – Contesting a Will under a family provision application
These proceedings took place in Queensland. The applicant, Peter Kozak, relied on s 41(1) of the Succession Act 1981, (Qld):-
“If any person (the ‘deceased person’) dies whether testate or intestate and in terms of the Will or as a result of the intestacy, adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in it’s discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant”.
- In assessing such an application, the Court needed to determine:-
- whether the deceased left the applicant, Mr. Kozak, without adequate provision for his proper maintenance and support, and if so,
- what provision should be made for him.
- The deceased and the applicant were in a de facto relationship.
- Prior to commencing his relationship with the deceased, Mr. Kozak had lived in a caravan on a farm owned by the deceased’s family, where he worked as a labourer. He had no savings, and received a modest income.
- Not long after beginning their relationship, the deceased was diagnosed with breast cancer. She was given a prognosis of only two years, although she lived for four more years.
- She subsequently purchased a home in which they both resided. A few months after the purchase of the home, the deceased and Mr. Kozak made a Financial Agreement, which included the following provision:-“Peter acknowledges that he has made no financial contribution to Jacqueline’s assets and agrees that in the event that they cease to cohabit or in the event of Jacqueline’s death, he will make no claim upon her or upon her estate as the case may be in respect of her assets.”
- The deceased also made a Will at a later stage, conferring all of her estate on her children. Under the Will, Mr. Kozak was granted the right to reside in the home for a period of 12 months following her death at no cost, after which the deceased’s 5 children would be entitled to the home.
- The Court took into account Mr. Kozak’s role of carer of the deceased, although only in the last 3 months of her life were the deceased’s care needs all absorbing, during which time he had assistance from others in caring for the deceased.
- The court also considered the contrast in the lifestyle of Mr. Kozak. Prior to the relationship, he lived in a caravan with a modest income. While with the deceased he lived a more affluent lifestyle, in which he enjoyed dining out, shopping, numerous holidays and living in the deceased’s home. Mr. Kozak did not make any financial contribution, apart from a modest contribution to entertainment, food and similar items. The deceased had also discharged a debt of $7600 owing on Mr. Kozak’s vehicle and given him $5,000 shortly before she died.
- The court weighed these considerations with the fact that both Mr. Kozak and the deceased knew almost from the outset of the relationship that she had a terminal illness. It was mutually understood that he would make no claim on her estate and the relationship progressed on this mutual understanding.
- The court found that the relationship proceeded on the assumption, reinforced by assurances from Mr. Kozak that the Financial Agreement would be honoured. Mr. Kozak knew and understood the effect of the deed.
- The deceased took active steps to ensure Mr Kozak was aware that she was making no provision for him in her will. He expressly accepted that to be the case, and did not demur.
The Court concluded that Mr. Kozak was not entitled to a greater share of the deceased’s estate, and ordered that he pay the costs the deceased’s estate had incurred in defending his application.
- It is interesting to note that the Court placed such consideration on the provisions of the Financial Agreement. This was the case, even though the Agreement was not technically binding, that is, Mr. Kozak had not received legal advice prior to signing the agreement which is a legal requirement in order for the agreement to be legally binding. Even further, Mr. Kozak purportedly did not even read the document before he signed it. However, he admitted that he did understand the effect that the document would have.
To see a full transcript of that case, click here:
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