A man has successfully argued at NSW Supreme Court that his late father failed to leave adequate provisions for his future wellbeing within the will.
The father, who died on February 1 2016, wrote an in-depth statement addressing his reasons for leaving his son without an inheritance, citing various family disputes.
The only beneficiary of the father’s will was the United Grand Lodge of New South Wales and the Australian Capital Territory, more commonly known as the Masons.
But how did the plaintiff win a family provision claim with such explicit instructions from the deceased that his son should receive nothing? Let’s examine the case in more detail to gain further insight.
Contesting a will
The Succession Act 2006 (NSW) states that testators – the person who has written a will – should adequately consider “the proper maintenance, education or advancement in life” of dependents and other eligible persons.
An individual’s children are included within this expectation, meaning sons and daughters often have a legitimate claim on a parent’s estate if they are left nothing in the will.
Nevertheless, a judge should also take into account the deceased’s testamentary wishes and weigh up whether their reasons for disinheriting a child are legitimate.
In this particular case, the father was angry that his son had:
- Failed to visit him regularly;
- Failed to visit his severely disabled younger brother; and
- Used his status as an executor of his late brother’s estate to personally benefit from available assets.
Significantly, the deceased was aware of the Succession Act and had sought legal advice, yet he still chose to write his son out of the will.
The judge’s decision
The deceased’s estate was worth $476,688 and had been converted into cash for distribution.
After considering the evidence, the judge ruled that the plaintiff should receive 60 per cent of the estate, equalling approximately $286,000.
Justice Kunc highlighted the key elements that influenced his decision:
- The plaintiff had no home of his own and a relatively small superannuation fund, with an impending divorce;
- The plaintiff would not have adequate retirement funds based on his age and remaining capacity to earn;
- The deceased had a long-standing and committed relationship with the Masons.
As such, Justice Kunc ordered that the deceased’s estate should be split 60 to 40 per cent between the plaintiff and the Masons, respectively. This ensured the son received adequate provisions from the will, while still leaving a legacy for the Masons, as his father had intended.
Would you like to discuss a family provision claim? Please contact Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers.
