LGBTQI Will exclusion – how to fight back!

By Kristina Antoniades (Special Counsel), Jack Stuk (National Tax Partner) and Clea Cole (Lawyer).

Sadly, many members of the LGBTQI community do not receive a fair share of a parent or partner’s deceased estate, in comparison to other “straight” beneficiaries under a Will, simply due to prejudice.

However, the terms of a Will may be challenged. An “eligible person” may make a family provision application claim under the Victorian Administration and Probate Act 1958 for proper maintenance and support. If successful, the exclusionary Will is effectively rewritten by the Court to provide the LGBTQI claimant with a fair share of the assets of the estate.

What is a family provision application?

A family provision application is a claim made in either the Supreme or County Court for an order that a larger portion of cash or assets be carved out of the assets of a deceased’s estate for the claimant.

It succeeds where the Court is satisfied that:

1. the claimant is an “eligible person”;
2. the deceased had a moral duty to provide for that person’s maintenance and support; and
3. the distribution of the deceased’s estate as set out in the Will, or pursuant to the rules of intestacy (i.e. when the deceased dies without a Will), fails to make adequate provision for their proper maintenance and support.

Generally, the application must be made within 6 months probate (Court granted validity of the Will).

Who is an “eligible person”?

An “eligible person” includes:

1. the spouse or domestic partner (which includes a LGBTQI partner) at the time of death;
2. a child of the deceased (including an adopted or step-child) who, at the time of death, was:
   1. under the age of 18;
   2. a full-time student between the ages of 18 and 25; or
   3. suffering from a serious disability;
3. other children of the deceased not referred to above (i.e. adult children). However for these claimants there is an additional consideration for the Court being the degree to which these children are not capable of providing adequately for their own maintenance and support;
4. a former spouse or domestic partner who was eligible to make a family maintenance claim under the Family Law Act 1975(Cth) but either had not yet done so or such proceedings were not finalised and the claim cannot now proceed in the Family Law Court after death; and
5. others who were dependent on the deceased for their proper maintenance and support.

Estrella v McDonald & Ors

Much of the case law concerning the LGBTQI community involves claims made by same sex de facto partners of a deceased who have not been recognised in the relevant Will often because the deceased was unable, during their lifetime, to openly acknowledge their relationship. This is what occurred in the 2012 case of Estrella v McDonald & Ors [2012] VSC 62.

Mr Estrella moved from the Philippines to Australia and commenced a romantic relationship with Mr McDonald which lasted for approximately 23 years until Mr McDonald’s death in 2008. Despite this 23 year relationship, the deceased did not give Mr Estrella anything under his Will and instead divided his estate amongst his children and grandchildren.

The estate was valued at $2,501,049.

Mr Estrella claimed that Mr McDonald had a moral responsibility to make provision for him under his Will and sought $900,000. Mr McDonald’s children disputed this claim and asserted that:

1. Mr Estrella’s relationship with Mr McDonald was merely a friendship; and
2. Although Mr Estrella and Mr McDonald lived together for a period of time when Mr Estrella first relocated to Australia, he was merely a lodger and was not required to pay rent as he carried out domestic services for Mr McDonald instead.

The Court found that although Mr Estrella and Mr McDonald were not domestic partners at the time of death (and had not maintained a romantic relationship for the entirety of the 23 year period), they had been domestic partners in the past and intended to resume that form of relationship. The Court ordered $300,000 be paid to Mr Estrella (the amount it considered to be adequate provision).

Baxter v Baxter

In this 2014 case, Donald Baxter, an internationally recognised AIDS campaigner and Order of Australia recipient found himself in a dispute with his older brother William Baxter, the executor of the estate, after receiving $50,000 under his father’s estate which was worth $742,203.83 (leaving apart assets held in trust outside of the estate).

Although the case did not specifically state (and the parties did not argue) that the deceased left Donald the smaller amount under his Will due to Donald’s sexual orientation and work within the LGBTQI community, it is however easy to infer. Donald was banned from visiting the family home with any partner (female or male) from 1971 to 1986. Further, the Court noted that although the Will seemed to favour members of the Baxter family who remained on the family farm or maintained an interest in managing the family business:

“Donald [was] not the only beneficiary under the will to pursue a career outside the farm. William also moved away from the farm for his political career. There was no evidence that [other will beneficiaries] worked on the farm”.

Donald made an application to Court for further provision from his father’s estate for an amount of $400,000. Taking into account the factual circumstances of the case (including the fact that Donald’s financial position and health had deteriorated since his father’s death) the Court awarded an extra $300,000 to Donald. The Court considered adequate provision for Donald was $350,000 not $50,000.

Takeaway lessons

• If you (or someone you know) feel as if you have been unfairly excluded from receiving a fair share of an estate, you should consider making an application for a family provision order…quickly! Normally, the claim must be filed in Court within 6 months of probate of the Will issuing (Court granted validity of the Will).
• Wills are not absolute and their terms can be challenged under the provisions of the Administration and Probate Act 1958 (Vic) and rewritten by the Court.
• Generally, claimants receive all or a majority of their legal costs for the claim from the “target” estate.

The Private Wealth team at KHQ Lawyers is happy to discuss your entitlements under the Administration and Probate Act 1958 (Vic) and related matters with you to help you understand your legal position.

We strongly advocate for the rights of the LGBTQI community.