Published 16 Jul 2012
Author: David Cossalter
WIN: Daughter In Financial Need Successful Against Estate of Mother
Cooper v McNeice; Munday v MacNeice  NSW SC 414
This is a matter where we represented a daughter in a claim against the Estate of her late mother where the whole of the Estate was left to be shared equally between our client’s brothers. Our client was not sufficiently provided for so as to ensure our client got what she rightly entitled to; the matter was fought to Trial before the Honourable Associate Justice Macready.
Our client has good relationship with her mother, her mother was under the misconceived view, that as our client had married she was being looked after by her husband and did not need assistance. Our client’s mother, was aware of our client’s financial circumstance, however such realisation did not transfer to the Will.
By vast contrast to our client’s poor financial circumstances the main beneficiaries of the Estate, or be it unemployable, had significant assets in their own right to the extent that the main beneficiary was unable to obtain Centrelink benefits.
The matter was before the Honourable Associate Justice Macready, Judgment being handed down on 27 April 2012. It is not throughout the Trial and leading up to the Trial we attempted to negotiate with the Estate, however at no stage there was reasonable position taken which would enable our client to be provided for in a retirement and holey remove herself from Government Housing.
We confirm the Judgment on 27 April 2012 found that our client was not sufficiently provided for and as such was awarded equal share of the Estate to the exclusion of one property which was to remain with the main beneficiary as this was his family home.
It was further argued that our client’s costs should not be holey paid for by the Estate, costs that were not insubstantial and costs that were mainly occurred on account of the Estate unwillingness to assist us in pursuit of our client’s rights and entitlements. The Court agreed with this position and ultimately found a cost incurred by our client would be rightfully incurred on account of the Estate not being forthcoming with information requiring our office to expend further costs and funds in perusing what was rightfully our client’s.
It is our opinion that Judgment made by his Honourable Associate Macready was fair and just in the circumstances and will enable our client to live comfortably in her retirement.
It is clear from this Judgment that the Courts attempted to do what is right and just and apply present day circumstance to the Estate and Will of the deceased person.
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