Daughter left out of will pursues family provision claim

Published 12 Jun 2018

A woman has launched a family provision claim against her mother’s estate after being left out of the will. The deceased chose only one beneficiary – her eldest son, aged 67, who had lived with her for his entire life.

The estate consisted primarily of a one-third share in the family home, with the remaining two-thirds split equally between the deceased’s five children. Valuators estimated the property’s value at $1.7 million, meaning the mother’s stake was worth approximately $566,000.

Under the Succession Act 2006, parents are expected to provide for the proper maintenance, education and advancement in life of their children, even those who have reached adulthood.

Had the deceased failed to do this by leaving the entirety of her estate to just one of five children? Let’s examine the details of the case and the judge’s decision.

What are the plaintiff’s circumstances?

Of the deceased’s five children, only the deceased eldest daughter pursued a family provision claim.

She is 66 years old and has numerous physical and mental health problems, including chronic schizophrenia, anxiety, fibromyalgia, coronary heart disease and renal impairment. The plaintiff lives in public housing and receives a disability pension.

No one challenged that she had a close and loving relationship with her mother. However, the deceased bequeathed her estate to her eldest son – the defendant – because he had cared for and supported her throughout her life, particularly as she became frailer in her later years.

The deceased’s will emphasised her wish that her son would use the money from the estate to establish himself independently, while acknowledging that her other children had stable living conditions.

What was the family provision claim result?

Justice Philip Hallen ruled against the plaintiff, stating that the deceased was well aware of her daughter’s financial and health circumstances but still chose to leave her estate to her son.

“While the court readily appreciates that [the plaintiff] may feel hurt and upset that the deceased has chosen to provide the whole of her estate to [the defendant], in the circumstances of this case, an order for provision for [the plaintiff] cannot be made,” Justice Hallen stated.

“The legislation does not justify orders to remedy perceived unfairness or hurt feelings.”

When contesting a will, claimants must therefore show they have sufficient need for further provision. This is why enlisting the services of an experienced will disputes lawyer is crucial to building the strongest possible case.

Gerard Malouf & Partners Will Dispute Lawyers has decades of experience delivering successful results for family provision claimants. Please contact us today to find out how we can help.

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