Published 23 Feb 2017
Author: Richele Nelsen
In 2015 a wealthy Sydney man died leaving behind a wife and four adult children. Two of the deceased man’s children were children he had adopted with a previous partner much earlier in his life. The other two children were children of the marriage with his wife at the time of his death. Whilst most assets were owned jointly with his wife, in his last will and testament the deceased left all of his assets to his wife. Upon receiving the news one of the deceased’s adopted sons contacted Gerard Malouf & Partners expert contesting a will lawyers to find out his rights and entitlements regarding making a claim on an estate.
Adopted children are provided the same rights and entitlements as any biological child when it comes to family provision claims made in NSW. When considering whether or not someone should succeed in a family provision claim the court will take into consideration the applicant’s financial circumstances. Our client was single, unemployed and renting a unit in Sydney to be close to his two teenage children. Although only receiving a Centrelink allowance he still made payment of child support each week. He had little savings however had accumulated about $100,000 in superannuation. Our client’s weekly expenses exceeded his income and as such he had been drawing down on his superannuation to meet his ongoing costs of living.
Before making an order for family provision the court will also give consideration to the size of the estate and the needs of the beneficiaries. In this case the estate itself was very modest, being worth about $15,000, as all other assets held by the deceased were jointly owned with his wife and therefore transferred into her name upon his death. Thankfully, the laws in NSW allow for these joint assets to still be counted as part of the estate (to the extent of the deceased’s share of those assets) for the purpose of making a family provision order. When looking at the deceased’s share of the joint assets, his estate could be worth as much as $1.5 million (most of this being the value of the family home)
Based on the above our experienced will dispute lawyers were confident that our client would succeed in a claim for family provision. Affidavit evidence was prepared on behalf of our client setting out the basis of his claim and the matter was referred for a mediation. During the course of the mediation we were able to successfully negotiate a resolution of our client’s claim whereby he was to receive almost $200,000.
If you have been left out of a will and/or believe you are entitled to make a claim for family provision contact our experienced will dispute lawyers at Gerard Malouf & Partners today on 1800 004 878.