Biological son successfully contests mother’s will and triples his portion awarded from the Estate

Published 03 Aug 2017

Author: Richele Nelsen

Our client, the biological son of the deceased, always had a good relationship with his mother. He was one of the youngest of her six children and recalls having a good childhood and a close and loving relationship with his mother.

Our client lived at home with his Mum until he was about 25 years old. Throughout his young adult years, he moved back in to reside with his Mum on a few separate occasions. He always felt they had a loving relationship where they always cared for and looked after one another. At the point where our client no longer lived with his mother, he always regularly visited her with his children and spoke with her on the phone weekly.

On the passing of the deceased, it was revealed in her will that she had provided for a small sum of money to our client as well as one of his sisters, with the rest of her Estate to be divided between her remaining four children. Furthermore, the will had an express provision which stated that our client and his sister were to ‘have no further claim upon my estate as I have provided sufficiently for them in my lifetime.’

Our client had 5 children and was employed on a casual basis earning a modest income. He had also suffered a back injury in 1999 which he has still not recovered from and this impacts his ability to work fulltime.  As a result of his previous injury, he was in receipt of a part-time disability pension and had a number of significant outstanding debts including amenity bills, day care fees, and Centrelink debts at the time of his mother’s passing.

Our client contacted Gerard Malouf & Partners to enquire about contesting a will in NSW and to determine whether or not he had grounds to contest his late mother’s Will. Being the biological son of the deceased and one of only two beneficiaries who received this lower apportionment of the Estate, we advised our client that he was in a position to challenge the Will by demonstrating that his personal circumstances indicated a need for a higher portion from the Estate.

Our expert will dispute lawyers wrote to the Estate lawyers putting them on notice of our client’s intention to make a claim for provision out of the estate. We helped our client to prepare affidavit evidence which we served on the solicitor acting for the estate. As always, and especially given the modest size of the Estate in question, we attempted to settle the matter out of court in an effort to minimise legal costs.

After negotiations took place, our client instructed us to settle on an amount that was more than three times the original gift provided for him in the will. Despite the express provision stating that our client was not to have any other further claim upon the Estate, we were able to demonstrate that he required a higher portion of the Estate based on his personal circumstances – particularly relating to his finances, family and his health.

If you think you may be in a position to contest a will or wish to enquire about your rights to make a family provision claim, please do not hesitate to contact our will dispute lawyers today on 1800 004 878.

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