Extension granted for grandson’s family provision claim

Published 21 Oct 2014

A grandson has been granted an extension to make a family provision claim after the executrix of his deceased grandfather’s will committed a breach of trust.

The deceased, who passed away in March 2007, gave his grandson right of residence to a Merrylands property, as long as he continued to pay tax and other outgoings on the house, kept it insured and in good condition.

However, the executrix and trustee of the deceased’s will instead used the property as security on a refinanced loan that her and her husband signed in August 2008.

When the couple were unable to pay back the money, the lender repossessed the property, resulting in the grandson losing right of residence.

The lender took both the grandson and the couple to court, although the grandson filed a cross-claim against the executrix and her husband for compensation due to breach of trust.

According to court documents, the breach of trust was clear and supported by evidence. As such, the grandson was awarded $674,708 for the loss of his rights of residence, plus interest.

The net proceeds of sale following the discharge of the mortgage provided $387,000, with the money being put in a controlled account until a decision is made on where it should go.

Family provision claim extension

Under the original will, the residue of the deceased’s estate should go to his daughter and daughter-in-law.

However, based on the executrix’s breach of trust, the grandson sought and received leave to change his claim and ask for an order of provision.

The grandson said he is an eligible person, was partly dependent on the deceased and also lived in the same household as his grandfather. The courts agreed there is evidence to support these claims.

While the timeframe within which to make a family provision claim had passed, the courts said the circumstances that led to the current situation have only recently arisen.

With this in mind, the grandson was granted an extension, which was not opposed by the daughter-in-law, who was ordered to be the new representative of the estate for the remainder of the proceedings.

Court documents suggested that the grandson and the daughter-in-law have come to a decision on how the $387,000 should be split between the two of them and the deceased’s daughter.

However, as the daughter was not present at the proceedings and has been difficult to contact, it is unclear whether she will agree with the proposed arrangement.

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