Estranged daughter settles family provision claim out of court

Published 17 May 2016

Author: David Cossalter

At 18 months old, our client, Ms T’s parents separated and she lived with her mother in the ACT before moving to NSW at the age of 12. Ms T’s father remarried and she had some contact with him over the years, spending holidays and weekends with him and his new family.  This contact ceased in later years.

In 2013 our client’s father passed away and she was not informed of his death. It was only until a family member contacted her that she learnt of his passing. Our client had no information on her father’s Estate or if a will even existed. In August 2013 she contacted GMP Contesting a Will Lawyers seeking legal advice about the possibility of pursuing a contesting a will claim against her late father’s Estate.

A senior Solicitor at GMP, Mr David Cossalter took on the matter on an investigatory basis. It was unclear if there was even an Estate, as property and assets owned by her father at the time of his death were transferred to the deceased’s surviving spouse, prior to his death.

Under the Succession Act (NSW) 2006, NSW is the only state that allows the Court to treat property that has already been transferred, to be notionally part of the Estate. Ms T’s father resided in the ACT and therefore any claim on his Estate would have to be made pursuant with the laws in the ACT, which do not allow individuals to recover any monies or assets transferred prior to death, or property that has been transferred by way of joint ownership to the surviving joint owner. 

Mr Cossalter provided our client with detailed advice on her options to make a claim against the Estate. On behalf of the client, Mr Cossalter put the Estate on notice of Ms T’s claim and requested a search to be undertaken on the deceased’s Estate and any assets that he may have owned at the time of his death.

To avoid unnecessary costs of litigation, Ms T instructed Mr Cossalter to commence negotiations and make an offer of settlement. We were able to negotiate with the Estate and our client accepted an offer and settled the claim for a substantial amount. Our experienced Will Dispute Lawyers were able to achieve this result without the need of litigation, saving our client money and time.

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