Two Adult Children Receive Provision out of an Estate Gifted Entirely to the Widow

Published 23 Aug 2018

Author: Garbis Kolokossian

Gerard Malouf and Partners were approached by two siblings, a brother and a sister, wanting to contest their late father’s Will. Our client’s late father had passed away gifting his entire estate to his widow, the widow being our client’s step-mother. The deceased and the widow shared a long and strong marriage of about 30 years.

The Estate comprised of a property in which the widow had been residing in for the majority of her marriage to the deceased and a significant superannuation benefit. Whilst our clients were eligible, being biological children of the deceased, they did not maintain much of a relationship of dependency upon the deceased throughout his lifetime. Rather, the two children at quite a young age, felt that following the break-down of their parents’ marriage, that their father had other priorities and became distant.  However, they always longed to reconcile and establish a strong relationship with their father.

GMP advised the clients that it would be unlikely that they would be successful in any provision out of the family home. Given that the widow continued to reside in the home with her daughter, and had no plans of moving out or selling the property, it would be very unlikely that a court would make an order to have the widow leave her home in order for adult-children to be provided for. After explaining this to the clients, they had no specific interest in making a claim on the deceased’s primary estate but rather the significant superannuation benefit that was going to be paid to the deceased’s widow representing a sum of approximately $500,000.00.

Proceedings were commenced in the matter to protect the client’s interests noting that the limitation period was nearing when the clients had approached GMP.  The clients were however advised of the recent trend in Supreme Court Judgments of cases in this nature, being that the plaintiff’s claims were being dismissed. The matter was set down for a mediation. At the mediation, GMP were advised that the Estate would only be willing to make one offer to each of the plaintiffs and that the provision would come from the superannuation benefit. The offer was reasonable in the circumstances and the plaintiffs were happy to accept the offer noting that they had been completely left out of the Will.

If you find yourself in a similar situation and would like to contest the Will of a deceased individual, please give Gerard Malouf & Partners a call today for a no-obligation chat with one of our expert solicitors today.

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