Sons Claim on Father's Newcastle Estate to Receive an Equal Share

Published 19 Oct 2017

Author: David Cossalter

We were contacted by 2 brothers to receive advice in relation to their late father’s Newcastle Estate.  Their father had been in a long term domestic relationship and unfortunately his partner passed away approximately 3 months after their father.  Our clients sought advice from our expert Contesting Will team at our Parramatta office, as to whether they were able to contest the Will of their late father, who left everything to his long term partner.

The Estate was not a large Estate, being less than $200,000.00, and ordinarily in this case the claim against the defacto widow would likely fail under Family Provisions Legislation.  However due to the fact that she had passed away within 3 months the same principles did not apply.

Whilst it is usual for a Will to provide secondary beneficiaries if a person passes away within 30 days of the testator’s passing, however in this scenario the defacto partner lived for a further 2 months and as such the entirety of our clients father’s Estate went to the beneficiaries of his defacto partner, being the stepchildren of our client’s late father.

The expert team at Gerard Malouf & Partners, led by David Cossalter, promptly identified that the size of the Estate did not warrant protracted litigation, and due to this promptly contacted the representatives of the Estate of both the late father and his defacto partner, so discussions could be pursued to avoid protracted and expensive litigation.

All the parties were able to identify that in the event that this matter, and given the small size of the Estate, went to trial, the entirety of the Estate would go on legal costs.  There were many issues to discuss and it was quite a complicated matter due to the intertwined Estates, however our expert Contesting Will team were able to put together an appropriate proposal which looked after the needs of both our clients and the step children so that all parties shared equally in the Estate.

David Cossalter was able to draft an appropriate Deed of Family Arrangement putting all of the agreements into writing and formalising the settlement without a need to approach the Court and expend excessive costs.  Our clients were quite happy with the result particularly as they each received 25% of the Estate and were able to resolve the matter in an expeditious and amicable way prior to formal Court litigation.

If you have been left out of a Will, or feel that you have been unfairly treated in a Will please contact our expert Contesting Wills team at Gerard Malouf & Partners for your first, no obligation consultation. 1800 004 878.

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