With a growing aging population, the issue of elder abuse is becoming more prevalent in our society, and while domestic violence issues between spouse and de facto couples are often highlighted in the media, elder abuse has remained somewhat ‘under the radar’.
However, in the past year there has been a particular focus on this issue in both Queensland and Victoria, with a report released in February 2015 by the Queensland Government addressing its prevalence in our State and a submission made to Victoria’s Commission into Family Violence in Victoria highlighting the shocking rate of elder abuse.
The issue has also recently come before the Court in Western Australia in respect of a family provision claim, whereby the Supreme Court of Western Australia had to determine whether the exclusion of the deceased woman’s only surviving child from her will was justified.
The estate raised an argument that she was justified in excluding her son from her will on the basis that he had engaged in ‘disentitling conduct’ under section 6(3) of the Family Provision Act 1972 (WA) by physically abusing the deceased and engaging in violent conduct towards her. After due consideration of arguments put forward by both the estate and the deceased’s excluded son, the Court was satisfied that the deceased’s son had indeed been physically violent towards the deceased.
Further, although much of the existing case law pertained to domestic violence rather than ‘elder abuse’ specifically, the Court in this case still considered that case law and determined that ‘…violence… is never acceptable…’ and ‘is at odds with a basic tenant of civilised society…’ and denied the son’s claim, stating that ‘a person who is violent towards a testator cannot simply expect to be provided for in a will or if not provided for, come before the court and receive a proportion of the estate’.
Although it is far from a foregone conclusion, Queensland’s Succession Act 1981 has a similarly worded provision to the WA Act and thus, it is likely that if this issue were to be brought before a Queensland court that a similar result may ensue. This may be particularly so given that Queensland’s legislative definition of ‘domestic violence’ is considerably broad, and includes behaviour that is considered to be coercive or threatening, as well as emotional, economical or psychological abuse.
If you require assistance or legal advice in relation to suspected elder abuse/domestic violence issues, or family provision and/or estate advice, our experienced and professional Family Law and Wills & Estate lawyer are available to assist at a time convenient to you. Please telephone our Gold Coast office today on 07 5563 8970 to arrange a consultation today.
