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You can’t choose your family: sibling rivalry over adult son’s claim for further provision, highlights the importance of making a will as a Parent.

A son’s application for a late inheritance claim was recently turned down by a Queensland court. After more than two decades of rent-free living in one of his father’s residences, the son requested further provision from the estate. This case demonstrates the challenges that may occur when a parent dies without leaving a will and provides important guidance for anyone hoping to seek further provision from the estate without the necessary supporting evidence.

The Case: Day v Peake [2023] QDC 178


The applicant, Lloyd Day, is the adult son of the deceased, Desmond Gunston Day, who died intestate (without a will) at 95 years old on July 25, 2020. Desmond was married twice and fathered seven children, six of them survived him.  The eldest child, Rosemary Peake, was granted letters of administration (a court order which allows the administrator to distribute assets and manage the estate) on August 2, 2021. Scott Day, initially applied for further provision from the estate on October 19, 2021, with Lloyd joining the application on March 30, 2022. Scott and Lloyd (the applicants) lived in the two properties namely 51 and 55 Sutherland Street Calliope, that comprised the entire estate, valued at approximately $440,000.

Given that the application was not filed within the nine-month deadline from the deceased’s date of death, the applicants required the court’s permission to proceed. Scott eventually did not continue to trial, but Lloyd argued that he should receive the properties to the exclusion of his other siblings. Rosemary defended the claim, maintaining that the estate should be divided equally among the surviving children according to the rules of intestacy.

Key Factors considered:

Following the judgement from Enoch v Public Trustee of Qld [2005] QSC 194, the court stated that it has unfettered discretion to decide whether to extend the time for making the application. Four factors were considered relevant to this exercise of this discretion, including:

1.     Whether there is an adequate explanation for the delay;

Justice Clarke found no adequate or reasonable explanation for the delay, suspecting Lloyd joined his brother’s proceedings to ‘simply further his own interests’.

2.      Whether there would be any prejudice to the beneficiaries;

The six surviving siblings were all competing beneficiaries. Brett, one sibling, required extensive care due to serious health issues, and Paul, another sibling, had significant needs due to injuries sustained while serving in the Australian Army. The judge noted that other siblings also had competing needs and that considerable prejudice had already been caused due to Lloyd’s opposition to the estate’s administration which resulted in ‘liabilities and costs which should not have been incurred’.

3.     Whether there has been any unconscionable conduct by the applicant; and

Lloyd was found to have engaged in unconscionable conduct, preventing Rosemary from fulfilling her duties to administer the estate. This included stopping attempts from Rosemary to enter the properties to conduct an inventory of estate chattels, despite police assistance. Lloyd was also found to have abused and threatened Rosemary by sending messages such as ‘I shot, I kill. I was a cadet. Paul x 3rar’.

4.     The strength of the applicant’s case

Lloyd’s claim was deemed to have very poor prospects of success. The judge found that he failed to demonstrate his need for further provision and was  ‘probably in a better financial position than most of the other beneficiaries’.


The judge concluded that a ‘fair and just testator’ would have made equal provision for all surviving children, aligning with the default position under the rules of intestacy. Additionally, orders were made for written submissions on how Lloyd and Scott should vacate the properties, prepare them for sale, and distribute the proceeds among the beneficiaries within 14 days.

You can find the judgement here: https://www.sclqld.org.au/caselaw/142860

This case highlights the critical importance of making a will to clearly outline the distribution of assets and minimize disputes among surviving family members. At Matthews Folbigg, we have experienced solicitors who can assist you in drafting a will and defending against family provision claims.

Matthews Folbigg Lawyers has a dedicated team specializing in Wills and Estates. For more information or advice on Wills and Estate practice and procedure, please contact Mimi Su at (02) 9635 7966 or via email at mimis@matthewsfolbigg.com.au