Daughter wins provision claim seven years after mother’s death

Published 11 Jul 2017

A woman has successfully argued a family provision claim in NSW Supreme Court almost seven years to the day after her mother died.

The deceased passed away on July 8 2010, leaving a relatively modest estate comprising a two-thirds share in a property located in Merriwa. The total value of the real estate was $537,500, and one of the deceased’s sons owned the remaining one-third share.

The building is used to run the family business, and she split her part of the property between her two sons – who were also named as executors – in the will, leaving the residual of her estate to the plaintiff.

One of the more curious aspects of this case was that the plaintiff’s brother failed to begin estate administration proceedings until 2016 – six years after his mother died. As such, the plaintiff’s family provision claim fell well outside the allowed timeframe, which is 12 months after the death of the deceased.

Pursuing provisions from the estate

Justice Philip Hallen waived the time restriction normally placed on family provision claims due to the plaintiff’s brother failing in his duties as an executor.

The court heard that her brother, the defendant, continues to use the property to run the family business, while also residing there. He therefore made little effort to obtain probate and was happy to maintain the status quo.

Due to the small size of the estate, the plaintiff was set to receive nothing from the will after the death of her mother. She decided to pursue an inheritance dispute to receive further provisions from the available asset pool.

This was complicated further because the deceased’s share of the property was tied up in a mortgage, the funds for which had been paid by the defendant’s wife.

Judge rules on family provision claim

Both parties agreed that $139,000 was available for distribution out of the estate after legal costs were taken into account.

The plaintiff’s brother argued that awarding his sister money would require him to sell the Merriwa property, dissolve the family business and lose his home.

However, Justice Hallen ruled that the deceased had not given adequate financial support to her daughter in the will and awarded the plaintiff $17,500 from the estate.

This case shows that even when an estate is relatively modest in size, parents still owe an obligation to their children for their maintenance, education or further advancement in life.

If you’d like to know more about contesting a will, Gerard Malouf & Partners Will Dispute Lawyers is here to help. Contact us today.

Free Call 1800 004 878 Make An EmailEnquiry
  • Nsw Offices

    • North Parramatta
    • Sydney
    • Penrith
    • Ryde
    • Blacktown
    • Liverpool
    • Chatswood
    • Campbelltown
    • Erina
    • Newcastle
    • Wollongong
    • Ballina
    • Tamworth
    • Wagga Wagga
    • Rockdale
    • Baulkham Hills
    • Bondi Junction
    • Mudgee
    • Tweed Heads
  • Vic Offices

    • Melbourne
  • Qld Offices

    • Brisbane
    • Bundall
  • ACT OFFICES

    • Canberra City