Brothers battle over mother’s estate

Published 25 Apr 2018

Two brothers have found themselves in the Supreme Court over their mother’s inheritance after she left one of the siblings the entirety of her estate.

In NSW, parents have a moral obligation to leave adequate provision for their children’s maintenance and advancement in life through their will. This duty also extends to adult children, depending on their personal circumstances.

However, in this particular case, the mother’s estate comprised primarily of a property in St Andrews, which she left solely to her youngest son. The woman, who died in 2015, had four children in total – three sons and one daughter.

Why did the will dispute occur?

Siblings that are disinherited in a will would usually have a strong case when pursuing a dispute. In fact, more than three-quarters of children are successful in contesting a will, according to a report from the University of Queensland and other academic institutions.

What made this case unusual was a disagreement over whether the deceased actually owned the St Andrews property. If not, she would be unable to bestow the home on a beneficiary in her will.

The deceased’s youngest son had originally bought the home after he received a compensation payout for a motor accident. He allowed his parents to live in the property until their deaths and argued the asset’s ownership never passed to his mother or father. As such, he believed his mother was simply returning the property to him in her will.

His brother – the plaintiff – is the deceased’s second-eldest son. He sought provisions from the will, claiming that his parents had repaid his brother and were the property’s owners at the time of his mother’s death.

Was contesting the will successful?

The onus of proof fell on the plaintiff to show his parents had bought out their youngest son, but he was unable to provide enough evidence to convince the court. He relied on unverifiable conversations with the deceased in which she allegedly confirmed to have taken out a loan to pay off the house.

Justice Francois Kunc ruled in favour of the youngest son, stating it was far more likely that he had allowed his parents to stay in the property until their deaths and thus remained the owner.

This was despite Justice Kunc agreeing that the deceased had left inadequate provision for the plaintiff and two of his siblings in the will. Nevertheless, he said the property was not the deceased’s to bequeath and so the plaintiff’s claim was dismissed.

But this decision shouldn’t discourage disinherited children from pursuing a family provision claim. The majority of cases result in favourable outcomes for the plaintiffs, so please contact Gerard Malouf & Partners Will Dispute Lawyers to discuss your claim.

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