Biological sons make successful claim on fathers will

Published 23 Jun 2015

Author: Vrege (Reg) Kolokossian

Brand v Brand [20150 NSWSC 52 – Pembroke J

The Plaintiff’s are half-brothers. The testator’s attitude towards his sons was not merely lacking in generosity but it was unfair and inconsistent with the standards of a wise and just father. He was clearly disappointed by them. As such the sons decided to contact GMP Contesting a Will Lawyers in order to obtain advice on how to contest a will in NSW, which led to the biological sons making a successful claim.

The Will

The last will was made on 27 February 2013 and the date of death was 26 May 2013. The net estate and notional value of the estate is $634,540.11.

Of this amount, approximately $61,000.00 was left to each of his sons. It was on this basis that the Plaintiff’s went about contesting the will.

Peter’s Circumstances – child from second marriage

He is 51 years old, married to his second wife and the father of six children. He resides with his wife and five of their children in a three bedroom dwelling. Rent is $200 per week. Peter has never owned a home.

Peter is employed on a casual basis and earns $4,028.00 a month. His wife is carer and homemaker, she receives approximately $400.00 a month calling Bingo once a week. They household also receives the Family Tax Benefit of $1,404 per month. Peter’s primary asset is his superannuation account of $91,900.00.

In 2000, Peter suffered an injury to his lumbar spine after failing down stairs in his home. He has reduced ability to sit or stand for long periods, and difficulty bending and lifting.

Peter lived with his father from 2003 until 2007, during which time he assisted with maintaining and improving the property. He and his father had a good relationship. In 2007 Peter married his second wife, they have had three children with the latest born in January 2015,

Peter assumed that reasonable provision would be made for him in his father’s will, especially given his limited financial circumstances. His Honour believes this was an appropriate expectation. It was for these reasons Peter opted to go about contesting a will.

Stephen’s Circumstance – child from first marriage

He is 63 years old and works two days a week as a volunteer of St Vincent de Paul. His only source of income is the New Start Allowance. His wife receives a pension of $705.00 a fortnight. Stephen suffered a mild stroke in 2007 and takes medication to treat diabetes, high blood pressure and high cholesterol. He and his wife rent a property in South Ulladulla for $280 per week.

In August 2013, Stephen’s mother died and he and his partner received a net sum of $230,000.00 as part of her will, of which about $110,000.00 remains. Stephen expected his father’s will would be split evenly between the defendant, Peter and himself. It was for these reasons Stephen opted to contest a will.

Appropriate Awards

It was found that adequate provision was not given to the sons of the deceased, as such Pembroke J ordered the remainder of the estate be distribute 60:40 to Peter and Stephen respectively. The sons were successful in challenging the will.

If you feel that you may have not been properly provided for in a will please do not hesitate to contact Gerard Malouf and Partners, where a number of highly experience wills dispute lawyers and barristers are waiting to assist you with how to contest a will.

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