Estranged son fights for share of father’s estate
Published 28 Aug 2017
A man who didn’t see his father for over 37 years has been awarded $100,000 from his dad’s estate after claiming he was inadequately provided for in the will.
The deceased, who passed away in 2014, separated from the plaintiff’s mother when the boy was just 18 months old. Despite trying to communicate with his father on two occasions, the claimant was rebuffed and never saw his father again.
The plaintiff filed a family provision claim, but the deceased’s de-facto spouse argued that her partner always contended he was not the man’s father.
The courts ordered a paternity test to prove the plaintiff’s eligibility, which showed he was the deceased’s son.
But was he entitled to a share of his father’s estate? Justice Guy Parker of NSW’s Supreme Court was tasked with deciding.
Key factors in the family provision claim
Justice Parker had to weigh up a number of competing factors while presiding over the case.
The $1 million estate was relatively modest, comprising a $750,000 St Peters property, a jointly owned investment home in Queensland and nearly $100,000 worth of Westpac shares.
The deceased left the entirety of his estate to his de-facto partner, excluding both of his sons from the will.
Meanwhile, the plaintiff has not been in paid employment for approximately 17 years and provided no evidence to the court as to how he and his wife support their four children.
The plaintiff, now 39 years of age, and his wife both suffer from various health problems, while all their children have medical or behavioural difficulties to some degree.
Justice Parker rules on provision claim
According to Justice Parker, the deceased did not make adequate provisions for his son when writing his will.
The judge said the deceased’s actions were particularly thoughtless because he had contested his own mother’s will when she died, redirecting funds that would have been passed onto her grandchildren, including the plaintiff.
“Having obtained the advantage of a provision by way of advancement from his mother’s estate, I think community expectations require that the deceased should, if possible, have made some sort of provision for his own children,” Justice Parker explained.
However, the judge also took into account the de-facto partner’s competing claim for provisions and her primacy in the will.
He awarded the plaintiff $100,000 from the estate, while the remainder of the assets will go to the de-facto partner.
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