Family provision claim pits spouse, daughter against each other

Published 22 Oct 2013

The New South Wales Supreme Court has released the judgment on a recent case involving a family provision claim made by family members of the late Ashoor Hilaney, which demonstrated how tangled such claims can become.

Plaintiff Helen Peipi argued that she should be considered Hilaney’s de facto spouse, considering they were together for two years before his death. However, Hilaney’s daughter, Jessica, has also filed a claim to say that her family provision should leave her up to 65 per cent of her father’s estate.

Jessica, another plaintiff, told the court that she doesn’t believe Ms Peipi should be considered a de facto spouse. Moreover, Jessica, who is “profoundly disabled”, has argued that adequate provision was not made for her in the will. The proper provision, she argued, should account for maintenance, education and advancement in life.

The second plaintiff did agree that Ms Peipi is entitled to 35 per cent of the estate because of the relationship she did have with the deceased, even if it wouldn’t be considered a de facto partnership.

The court stated if it could be determined that Ms Peipi’s claim is verified, it would establish her as the de facto spouse of an intestate person with a child by previous marriage. This would entitle her to the personal effects of Ashoor Hilaney, as well as a statutory legacy of $350,000.

The court’s conclusion of the family provision claims

By the end of the case, the court had found that Ms Peipi was in fact the de facto spouse of the deceased, as she had been with Ashoor Hilaney for the required two years before his death.

However, because of the nature of Jessica’s claim, the judge ordered she still receive 65 per cent of the estate.

“In my view the Court should make an award on an inclusive of costs basis in this case,” Supreme Court Justice J Slattery stated.

“That can be done by making no order as to costs as Brereton J did in Taylor v Farrugia at [74] to the intent that the parties’ costs be paid out of their respective shares.”

This case between a daughter and her de facto stepmother demonstrates how complex family provision claims can be, and why it’s a good idea to consult contesting wills lawyers in such an instance.

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