Family provision claim illustrates lesson for contesting a will

Published 15 Dec 2015

While the emotional pain of losing a loved one is stressful enough, many of these unfortunate situations are made even more difficult by legal issues surrounding the distribution of an estate.

Even when people create a will before their passing, there’s no guarantee that the process of distributing the estate will go smoothly, especially if someone chooses to contest the will. One common method for contesting a will involves a family provision claim, a process that requires a plaintiff to meet a range of conditions on which the case will be judged.

According to Find Law Australia, this can include everything from the type of familial relationship between the plaintiff and the deceased to its duration and the financial needs of the plaintiff. In any cases, these appeals aren’t always simple, as the Judge will make his or her decisions based a on a list of different requirements.

Denied family provision claim a valuable lesson for future plaintiffs

A recent case which made it to the Supreme Court in NSW illustrated the complex nature of family provision claims, and the value of consulting contesting wills lawyers before launching a case.

Like many contesting will cases, this example concerned a plaintiff who seeks designation of a property they were not assigned when the will was first read. On top of this, the plaintiff, despite being the deceased’s biological daughter, was not included in the will at all.

In these cases, the plaintiff must make the argument that they meet the criteria for a family provision claim. While it was discovered during the trial that there may have been tension between the plaintiff and the deceased at various points throughout their lives, the fact they stayed in touch in recent years suggests there was no reason for the plaintiff to be excluded from the will.

However, while the plaintiff’s claim was successful, there are insufficient funds present in the estate to remunerate the plaintiff. In some cases specific to NSW only, the concept of a notional estate can see extra value added through the inclusion of assets that are normally left out of estate valuations, such as superannuation funds.

In this example, the Judge ruled there is no grounds for a notional estate, meaning that while the plaintiff is eligible to be included in a will, the estate is unable to provide for her.

For more information on how a family provision claim can help contest a will, contact the team at Gerard Malouf and Partners.

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