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Ex and estranged wife lodge competing family provision claims

When a NSW man died intestate in 2011, his relatives proceeded to lodge a number of family provision claims to ensure they received their fair share of his estate.

In particular, three of the deceased’s five children brought forward applications for provision out of the estate, which were lodged in 2012. Each of these defendants were offered a percentage of the assets left by their father, depending on their financial standing and relationship with the deceased.

After this point was reached, the inheritance disputes were still not settled as the man’s past wives came forward to claim their rightful portion of the estate.

The man had been married twice in his lifetime, having had a relationship with one woman from 1958 to 1980 and the second woman from 1982 and 2008.

At the time of the man’s death in 2011, his ex-wife claims that she and her former husband had reconciled and were living in a de facto relationship together. Because of this, and the estrangement between the deceased and his current wife, the ex-wife believed she was deserving of a portion of the estate while the other woman was not.

The Supreme Court of NSW studied the complex relationships within the family with significant scrutiny. As the deceased had died intestate, it was impossible to ascertain what his wishes were regarding his two former partners.

However, as the estranged wife was still legally married to the deceased, she would – through the statutory regime on intestacy – be eligible to receive up to half of the estate. This claim would be voided or decreased if the Courts could prove the ex-wife and the deceased were in fact in a de facto relationship.

Unfortunately, while evidence showed the ex-wife had in fact reconciled with her former husband in the later years of his life, her claim that they were living together was exaggerated. The Supreme Court of NSW found that she had instead been living either in a different city or apartment to the deceased for much for the time she claimed she was with him.

In fact, the Court was able to disprove the ex-wife’s claim of living with her ex-husband after analysing her bank account statements between 2009-2011. It was discovered that no withdrawals were made outside of Sydney on her accounts in this period, which proved she could not have been living with the deceased on his property in Yorklea.

Because of the decision that the ex-wife was not actually in a de facto relationship, the estranged wife was considered the only living spouse of the deceased. This led to her being awarded a portion of the estate as succession rules allow.

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Contesting Wills
 — Gerard Malouf & Partners

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