Dependent grandson wins family provision claim

Published 27 Jun 2017

A man who was left nothing in from his grandmother’s estate has successfully contested her will in court through a family provision claim.

The plaintiff, who suffers from schizophrenia, obsessive-compulsive disorder and other health problems, spent the majority of his life sharing the family home with both his mother and grandmother.

It was this property that comprised the majority of the estate, with the dwelling valued at approximately $950,000. The deceased also had nearly $4,500 in cash saved in bank accounts and various personal belongings with little to no commercial value.

The will ordered that the estate be divided equally between the deceased’s three children, including the plaintiff’s mother, who also launched a family provision claim, although this was ultimately unsuccessful. Each sibling was set to receive $288,000 before the inheritance dispute.

Key factors in family provision claim 

The plaintiff was considered an eligible person with regards to the Succession Act 2006 (NSW). He was a grandchild that had lived with the deceased prior to her passing away and was partially or wholly dependent upon her.

Furthermore, the plaintiff’s counsel argued that the nature of the relationship between grandmother and grandchild was more akin to a surrogate mother/child arrangement.

The deceased had also identified the plaintiff as a beneficiary in a previous will dated to 1996, in which he would have received a $30,000 legacy if he outlived his mother.

However, the plaintiff’s uncle and aunt – both executors of the will – argued that the relationship between the deceased and the plaintiff was more fraught than his lawyers implied.

Family provision claim decision

Justice Philip Hallen agreed that insufficient consideration had been given to the plaintiff’s ongoing needs in the deceased’s will and awarded him $60,000 from the estate to cover an educational course and an exigencies fund.

The money was subtracted from his aunt and uncle’s share of the estate at a rate of 4.5 and 2.5 per cent – a total of $38,925 and $21,625 – respectively.

Meanwhile, the plaintiff’s mother, while unsuccessful in her own family provision claim for a greater share of the assets, was allowed to keep her original $288,000 legacy.

To learn more about family provision claims in NSW, please contact a law firm that is well versed in will contestations, such as Gerard Malouf & Partners Will Dispute Lawyers.

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