Adult son’s family provision claim fails

Published 15 Dec 2017

A man’s family provision claim against his mother’s estate has failed, despite the fact he received nothing in the will.

The 61-year-old plaintiff pursued an inheritance dispute after his mother’s assets were left entirely to his sister, who was the executor of the estate.

More than three-quarters of family provision claims that children make are successful, according to a report from the University of Queensland and other academic institutions. So why did this one fail?

Did the deceased make adequate provision?

Under the Succession Act 2006, an eligible claimant can contest a will if they believe they did not receive adequate provision from a loved one’s estate.

In this particular case, the plaintiff seems to have a strong claim because he was left nothing, while his sister received all of their mother’s assets, which mainly comprised of a $775,000 share in a Cecil Hills property.

The daughter and her husband were already joint owners of the dwelling as tenants in common with the deceased.

According to the will, the plaintiff was provided with no legacy because he had already received significant financial support from his parents during their lifetimes.

This included $90,000 towards the cost of building a home on land at Bossley Park, as well as $40,000 for the purchase of the plaintiff’s first home.

Son agreed not to claim on estate

Another factor damaging the plaintiff’s claim was that he signed a written agreement while his mother was still alive, which confirmed he would not pursue a claim against her estate when she died. In exchange, his mother gave him 50 per cent of the proceeds from the sale of the family home. Previously, he was only entitled to a one-third share.

Meanwhile, his sister received no financial assistance from their parents while they were alive. She instead had a verbal agreement with her mother that she would receive the remaining 50 per cent share of a property in which they were both living prior to the latter’s death.

The plaintiff was also unable to prove that he had any pressing financial needs. He and his wife owned their house and were supporting three adult children, who all lived in the family home. Justice Francois Kunc ruled the man did not need further provision from the will and dismissed the claim.

Before proceeding with an inheritance dispute, it’s crucial that experienced contesting wills lawyers assess your claim to ensure you have a good chance of success.

Gerard Malouf & Partners Will Dispute Lawyers has a difficult case policy to help even the most complex or challenging claims succeed. Contact our management team today to discuss your needs.

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