A lack of a will leads to family provision claims

Published 08 Jul 2014

Relationships dynamics, succession laws and financial standings were all considered closely when deciding the outcome of a recent family provision claims case overseen by the Supreme Court of NSW. A man, who had married twice in his lifetime, died intestate due to a motorcycle accident, leaving behind a widow and two biological children and one step daughter by his first wife.

When deciding on the outcome of the children’s family provision claims, the widow’s financial standing was seriously considered by the Court. It was found that a range of sources have provided the woman with significant financial support over the years, including benefits from her mother’s estate, received this year, and assets worth more than $1 million.

However, the widow sustained serious disabilities in the same accident that killed her partner. Her medical costs have thus far been paid using compensation offered by the Transport Accident Commission of Victoria but her care is likely to create ongoing costs.

Additionally, these injuries will affect the woman’s ability to undertake paid employment in the future, and the Supreme Court accepted that she is unlikely to ever return to the workforce.

It is important to note that each of the plaintiffs enjoy good health and suffer from no physical, intellectual or mental disability. This means that while the widow is not likely to receive an employment-related income in the future, the three children should have no trouble retaining or securing wages.

Despite this, due to the laws of succession each child will receive a small portion of their father’s estate. This includes the stepdaughter of the deceased, who joined the family at the age of two and has no relationship with her biological father. As this woman changed her name to reflect her relationship with step father, and lived with him for the majority of her childhood, she is considered, for all intents and purposes, the daughter of the deceased.

Not each child will receive the same provision, due to their individual financial standing and specific needs. In particular, the step daughter benefits from the joint income of her and her de-facto partner, which means she is being offered $33,500 from the estate.

Additionally, the son is in the best financial position of the plaintiffs. He and his de-facto partner earn an income that exceeds their expenditure by a significant amount. He will therefore receive just $20,000 to pay off his student loan.

Finally, the daughter of the deceased holds debts of $65,000 and does not receive financial assistance from a partner. The Supreme Court therefore decided she would be provided with a lump sum of $50,000 to pay off the majority of her debts.

This results in a $103,500 loss from the estate for the deceased’s widow which, when her own finances are taken into account, should not be a significant burden.

If a family member passes away intestate, you may eligible to lodge a family provision claim on their estate. For more information, contact a contesting wills lawyer today.

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