Published 24 Jan 2017
Author: Richele Nelsen
A Northern Beaches mother of 3 died leaving an estate worth approximately $2 million. Due to a falling out with 2 of her children many years before, the mother excluded them from her will, leaving the entirety of her estate to her oldest child. When notified they were excluded from their late mother’s will the son and daughter of the deceased made contact with Gerard Malouf & Partners to enquire about contesting a will.
It became immediately clear that the deceased had made inadequate provision for her two children and a family provision claim should be brought. When considering the basis of a family provision claim the court will look at any provision provided for the party making a claim, that party’s financial circumstances and whether there is a need for further provision that should have been met by the deceased in their will.
The deceased’s daughter who had been excluded from her will was renting a premises with her de-facto partner, she was working on a casual basis with a modest income and had personal loans of approximately $2,000. The deceased’s son was married with two young children. Whilst he was working full time he and his wife owed approximately $700,000 on their mortgage.
In a family provision claim the court will also take into consideration the relationship between the deceased person and the party making a claim on their estate. In this case, the deceased was an alcoholic for many years and this resulted in a falling out between her and the two children she excluded from her will. The circumstances were such that a reasonable explanation could be provided to the court as to why the deceased’s children had no contact with her leading up to her death.
Our experienced will dispute lawyers prepared and lodged a claim on behalf of both children seeking family provision from their mother’s estate. The child who had been left the entirety of the estate produced evidence demonstrating she had a substantial need to be provided to due to health and her financial circumstances. The estate however was large enough that provision could still be made for our clients and leave sufficient funds for the maintenance of the sole beneficiary.
The parties participated in a court ordered mediation where we were able to enter into settlement discussions. After several exchanges of offers we were able to successfully negotiate a resolution whereby our clients were to receive $650,000 from their mother’s estate. Our clients saw receipt of these funds as recognition of their standing as children, and allowed for them to substantially improve their future financial stability.
Do you have an enquiry about challenging a will? Do you have rights to make a claim from family provision? Contact our will dispute lawyers today on 1800 004 878.