Estate held up in probate for over five years

Published 17 Nov 2018

The son of a deceased woman is the plaintiff in a recent case, battling in court against the person his mother was living in a de factor relationship with, the defendant. Both are executors of the estate, but only the defendant has made a family provision claim.

It has been seven and a half years since the woman’s passing and the estate is still held up in probate court.

Background on the estate

The deceased woman’s last Will was made by her in 1998, according to the court records. She had appointed both the plaintiff and defendant as executors of her estate, leaving half of her estate to the defendant and a fourth to each of her two sons, one of whom is the plaintiff.

Probate was granted on the estate over five years ago, and the estate has still not been administered. It took two years after her death for the court to grant probate, largely because of delays from the two executors, discussions between the plaintiff and defendant’s solicitors and a change of solicitors.

The judge said that it was clear the “administration of the deceased’s estate should have been simple” but was held up by these two parties unnecessarily.

The net value of the estate, at the time of the woman’s death in April 2011, was estimated to be $133,648. However, the estimated value of a property she owned was estimated at $320,000 when the hearing began. Now, it is agreed that after debts, mortgages and administration costs are paid, the net value is $226,524.

Defendant finally makes claim family provision order

The judge stated that those eligible to apply for a family provision order would be the two sons, the woman’s former spouse and the man she was living with (the defendant). However, only the defendant has made a claim for a family provision order.

Apparently the defendant had remarried several years ago and is currently living in the deceased’s former property with his new family. The home is still registered under the name of the deceased. The plaintiff was unaware of this relationship until six months prior to the hearing.

The judge suspects that proceedings were not initiated by the defendant until now because he wanted to remain living in the property and worried that it would have to be sold after everything was sorted through.

For these reasons, and because the judge did not see any reason that the Will did not provide adequate provisions for the defendant, his application for the family provision order under the Succession Act 2006 was dismissed.

If you believe you are eligible to contest a Will, our experienced team can help at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers. Contact us today.

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