Published 30 Jun 2015
Author: Vrege (Reg) Kolokossian
The Plaintiff in this matter is contesting a will in NSW of her former de facto partner of the late Joseph Patrick MorrisShe was involved in a de facto relationship with the deceased some 30 years ago. Ultimately, she was successful and as a former de facto partner awarded $350,000.
After separation the Plaintiff moved to America. During this time the deceased paid the Plaintiff some maintenance for the upkeep of their son when she was in his care, this even extended to paying for flights and such so as he could sufficiently spend time with his mother in the US.
The Plaintiff returned to Australia in 2006, at which point she turned to the deceased in need. The deceased voluntarily provided her with assistance, namely:
a) Cheque for $25,000; and
b) Cheque for $14,300; and
c) Cheque for $10,000.
The three cheques were provided between December 2006 and June 2009. Further assistance was offered but the Plaintiff declined, stating that she wanted to try and make it on her own.
The Plaintiff is now aged 67, and has a need for more secure accommodation and assistance with living expenses. The Plaintiff contacted her wills disputes lawyers in order to ascertain how to contest a will. This resulted in her contesting the will.
The defendant in this matter was the executor named in the will. The will provided for the deceased’s estate to be divided equally between his wife, son and daughter. The estate was estimated at $6.8 million. After various allowances this was re-evaluated at $5.7 million.
Of this amount a total of $2.9 million has been provided to the beneficiaries named in the will, leaving an estimated value of about $2.8 million to answer any orders in the current matter. It is on this amount that the Plaintiff is contesting the will.
Factors warranting the Making of an Application
In this matter, as life unfolded there was a reconciliation between Plaintiff and the deceased, culminating in those 3 substantial cheque advancements. In doing this. The judge took these as a way of the deceased showing the Plaintiff was a natural object of his bounty.
Inadequacy of Provision made for the Plaintiff
The will was dated 5 July 2006. It was not until after the creation of his will that the Plaintiff arrived back in Australia, and the deceased voluntarily advanced money to the Plaintiff. By his own conduct, as is found by the Court, the deceased recognised the Plaintiff as a member of his extended family.
The Plaintiff is 67 years of age, she is alone, owns no real estate or car and lives in a small rented unit. She is unlikely to turn to her son for assistance in the future. It was found that the Plaintiff was inadequately provided for. These are the reasons that she was ultimately successful in contesting a will.
In this matter, a provision was made for the Plaintiff. Taking all things into consideration, his Honour made a provision for the Plaintiff in the amount of $350,000.00. He ordered this to be paid out of the remainder of the estate.
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.