Published 20 Oct 2016
Author: Richele Nelsen
We received instructions from our client in 2014 after the passing of his late father, who left an estate worth close to $2 million. In the deceased’s Last Will and Testament he left the majority of the Estate (Approximately $1.2 million) to one of his three children (the executor), with the rest and residue to be split equally between our client, his brother and our client’s three children, leaving our client with $160,000.00. This unfair distribution prompted our client to contact Gerard Malouf & Partners to enquire about contesting a will NSW.
When assessing whether a Family Provision Claim can be made, our Will dispute Lawyers look at the Succession Act 2006 (the Act). In order for provision to be made pursuant to the Act, the Court has to be satisfied that an individual is an “eligible applicant” under s57 of the Act. In addition, when challenging a Will, it is important to determine whether or not an order for provision should be made in the plaintiff’s favour. This means that the Court must be satisfied that at the time of the application, “adequate provision for the proper maintenance, education or advancement in life of the person whose favour the order is to be made has not been made by the will of the deceased person”.
Understanding that our client was suffering from financial hardship over the last 10 years and was receiving constant financial and emotional assistance from the deceased leading up to his death, our experienced Will dispute lawyers commenced proceedings in the Supreme Court of New South Wales on behalf of our client. We were confident that our client would succeed in an award for further provision from the estate. In addition to our client’s claim, his brother also made a family provision claim pursuant to the Succession Act seeking further provision.
At the mediation between the parties the executor failed to make any reasonable offer of settlement. As such the matter ran to hearing and submissions were presented in court by all parties. We made submission on behalf of our client identifying his needs, which included his monthly household expenditure, his lack of income and savings to meet the financial needs of his young family and additionally, the recent birth of his child who has significant health problems and associated medical costs.
In his Judgement, His Honour, Justice Slattery, considered the financial positions of all parties and identified that our client needed additional funds to assist with the purchase of a family home and provide financial stability for his family, giving him the best opportunity to grasp the best health outcome for his children.
His Honour accepted that each party merited an order for further provision. However, the court took into consideration that our client’s sister was living with the deceased before he passed and had a meaningful and loving relationship with him. In addition, His Honour emphasised that she earnt approximately one third of the monthly income of each of her two brothers and did not have any obvious opportunities to improve her earning capacity in the near future. It was for this reason that His Honour noted that the proper exercise of the Court’s discretion should not lead to unnecessary financial uncertainty for the claimant’s sister, who was entitled to the majority of the estate under the last will of the deceased.
On the evidence, the Supreme Court of NSW concluded that there was sufficient grounds and proof to establish that our client’s financial circumstances created a need for him to bring a claim for further and better provision from the Estate of his late father. Our client was awarded $340,000.00 from the estate, nearly doubling his initial entitlements under the Will.
If you believe you have been unfairly treated in a will contact GMP Contesting a Will Lawyers for a free legal consultation.