Battle over father’s inheritance continues between siblings

Published 28 Mar 2018

Three children of a man who died in 2014 continue to fight over their father’s estate, with the case recently reaching the NSW Court of Appeal.

The deceased had five children – four sons and one daughter – and the inheritance dispute has engulfed all the siblings apart from the man’s youngest son.

Let’s examine the case in more detail, including both the original trial and the appeal.

Why was the will contested?

The deceased wrote three wills in the year prior to his death. One was drafted in November 2013, while the remaining two were produced on May 23 and June 6 2014, respectively.

In the November will, the man appointed his eldest son as executor and established a trust that divided his estate equally between his three eldest sons and daughter. His youngest son received assets in Croatia, where he and the deceased had both lived prior to the latter’s death.

However, both 2014 wills disinherited the eldest son and appointed the deceased’s second-eldest son as executor.

The man’s eldest son challenged the wills, claiming the deceased lacked testamentary capacity and had been placed under undue influence from his other children while drafting the documents.

Justice Geoff Lindsay ruled the deceased had lacked the capacity to write the June 2014 will and suggested the May document was prepared and executed at the instigation of the eldest son’s siblings.

He therefore invalidated the two most recent wills and granted probate on the November 2013 document.

Siblings appeal the original decision

One of the brothers and the sister appealed Justice Lindsay’s decision, arguing the judge had failed to make key findings during the case.

For example, the deceased’s primary reason for leaving his eldest out of the 2014 wills was because he had given his son $4 million to share between him and his siblings. The father claimed his son kept the money for himself.

Prior to his death, the deceased also believed his eldest son intended to sell the family business and had prevented his father from accessing $2.9 million held in a Croatian bank account for medical expenses. These allegations may have provided sufficient cause for the deceased to change his will in the months leading up to his death.

On examining the evidence, three appellate judges agreed that Justice Lindsay had erred by not addressing these reasons for excluding his son from the will. They noted that the original judge’s error was substantial enough that it would constitute a miscarriage of justice if a new trial didn’t take place.

The case shows that even judges can make mistakes during inheritance disputes, so it’s important to enlist the services of an experienced contesting wills lawyer to fight your appeal if the original decision doesn’t go your way.

Contact Gerard Malouf & Partners Will Dispute Lawyers to discuss your options today.

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