Published 10 Dec 2012
Author: David Cossalter
Our client was the illegitimate daughter of the deceased. The deceased died without leaving a Will and in these circumstances the law that would generally apply is that of Intestacy. In these circumstances, the wife gets $200,000.00 plus 50% of the remainder of the Estate, the other 50% is to be divided between any children of the deceased. In the circumstance the deceased left a wife and 3 daughters, our client being one of them.
From the distribution that would have been normally coming to the client through the Laws of Intestacy she would have received some $50,000.00 along with similar amounts being received by the other daughters, the twist in this case is that all daughters had received an amount equivalent to approximately $100,000.00 from superannuation and death benefits. This issue made the case more difficult, however not unwinnable. We believed in the rights of our client and the fact she was a daughter that did not have contact with her father as her father’s wife, the defendant, would not allow him to see her. The contact between our client and her father ceased when she was some 3 months old.
In normal circumstances the fact that our client had little to no contact with her father, had received $100,000.00 plus was to receive a further $50,000.00 would have turned many other firms away. We believed in the rights of our client and believed that she was entitled to a larger share of the estate given her needs and desires for future advancement and schooling requirements. We fought and the matter was brought before the Court where after 2 days of trial His Honour agreed that our client was entitled to a greater share of the Estate.
The real success is that our client did not wish to take anything away from her sisters however did not believe that the defendant, the widow, should have received a portion of the Estate as she was entitled to, mainly on the basis that she already owned an un-mortgaged home and had also received $100,000.00 from the death benefit and superannuation. His Honour agreed with us in this position and accordingly only awarded her the $200,000.00 due under the Intestacy Law. The remainder 50% which was to go to her, some $140,000.00 was divided equally between our client and her sisters, the exact result that our client wanted and the result that we achieved.
His Honour came to this decision as we were able to successfully identify that the widow, the defendant did not have as many needs as the 3 daughters did. We were able to convince His Honour that;
a. even though there was minimal contact between our client and her father, this contact was of no fault of her own and that she should not be penalised for this; and
b. even though our client was the illegitimate child of the deceased she should be recognised equal as to his legitimate daughter and accordingly awarded the same amount.
This final result was probably the largest success out of the trial as prior to his our client had not received any recognition from her father.
This matter was a big win for those persons who have been abandoned by their parents and, out of no fault of their own, did not have a relationship with their natural parent.