Court rules against daughter’s family provision claim challenge

Published 23 Oct 2014

People who believe they have not been adequately provided for in a will may find a family provision claim can help. However, even the terms of a family provision order can be challenged if the claimant feels they are still not receiving a fair deal.

This is what happened in a recent case seen by the Supreme Court of NSW, when a 62-year-old woman disagreed with an offered substitution order after she had already succeeded in her family provision claim.

Her father, the deceased, was a successful businessman who amassed a considerable fortune, but failed to leave any money to his children in the will. He noted that he had provided substantial financial support to his kids and former spouses while alive.

The decedent also made his children beneficiaries of a trust that continues to make ongoing payments for their upkeep and maintenance.

However, his daughter – who is one of four children – said her financial situation was such that the will did not make adequate provisions for her upon her father’s death.

The judge agreed and awarded her $175,000 from a $1.2 million notional estate. Part of the plaintiff’s costs would also be covered.

Substitution order challenged

While this original decision was made in May 2014, the plaintiff and the defendants were unable to come to an agreement on how best to fulfil the family provision order.

Much of the notional estate consisted of shares and other property held by the first defendant – the deceased’s widow. She offered just over $570,000 as a substitute.

The daughter opposed the switch, claiming the property was worth more than the money proposed. The 62-year-old also said the arrangement would give the defendant effective control of the beneficiary trust because she would hold a majority of shares.

According to the defendant, the cash substitute is the best way to facilitate the implementation of the family provision order, particularly as the notional estate contained many non-liquid assets.

The judge ruled in the defendant’s favour this month (October 15), stating in court documents that the substitution order was an appropriate measure for ensuring the plaintiff received the $175,000 lump sum as quickly as possible.

While in this instance the plaintiff failed to have the substitution order changed, her original family provision claim success shows the importance of seeking expert legal advice when deciding to contest a will. If you are considering an inheritance dispute, please contact an expert wills lawyer today.

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