Joint Assets to be Pulled Back into an Estate to meet a Will Dispute Claim

Published 17 Sep 2014

Author: Richele Nelsen

If a property is owned by more than one person, there are two ways the ownership can be recorded. Firstly, the ownership can be in joint tenants whereby each person holds an equal share in the property and in the event one of the parties die, their interest in the property automatically shifts to the other owner/owners. The second way in which parties can own a property is as tenants in common. The way in which title is held can impact greatly on will dispute claims. It is possible for joint assets to be pulled back into an estate to meet a will dispute claim.

If a property is owned in joint tenancy then the interest in the property is automatically vested in the surviving person or persons who own the property upon their death. This means that a property owned in joint tenancy does not technically form part of the Estate as it passes to the surviving party. However, legislation exists in NSW which allows the Court to make an order (known as a notional estate order) to bring the deceased person’s share of the joint property back into the Estate for the purpose of making a family provision order where a claim has been brought contesting a Will.

Our client was an adult son whose father had re-married approximately 30 years before his death. At the time of his death our client’s father held less than a $10,000.00 worth of assets in his own name. Everything else was in joint names with his wife including 2 properties and bank accounts with substantial funds. All assets went to the deceased’s widow, our client’s step-mother.

Our client had an estranged relationship with his step-mother and no guarantee that she would leave him any legacy from her Estate when she passed away. Concerned about his position, our client contacted Gerard Malouf & Partners about a Will dispute and making a family provision claim.

The Estate did not want to participate in settlement negotiation so our experienced Will dispute team prepared and lodged proceedings in the Supreme Court of NSW. After providing the Estate with details of the claim, the parties participated in a Mediation. The Estate only offered a small sum to settle the claim which prevented the parties from resolving the claim at this stage.

Our determined solicitors, experienced in difficult Will dispute claims continued to fight for our client in his claim for family provision from his Late father’s Estate. 

This persistence paid off and just 3 weeks after the Mediation, the Estate offered our client $55,000.00 to resolve his claim. Our client was pleased as his claim had been taken seriously by the Estate and he accepted the offer to resolve the claim without the need of going to a Court Hearing.

Notional Estate claims are only possible for Estates within NSW, however claims can be made where a property is owned as tenants in common across Australia. If you have an enquiry about contesting a Will or making a family provision claim, contact our office today on 1300 768 780 to speak with our experienced staff.

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