Family provision claim shows the value of contesting a will

Published 19 Jan 2016

It’s never easy making the decision to contest a will, especially in cases where a troubled relationship was the cause of the disagreement. In these times, not only do people need to overcome the deceased’s loss, they then need to go through the process of contesting a will – a series of events that can add extra stress to an already difficult time.

A recent case before the NSW Supreme Court illustrated how troubled family relationships can impact the way people create a will, and what people need to do if they believe they should have been a beneficiary but were excluded.

Plaintiff wins contesting wills claim after originally being excluded

The Family Provision Act 1982 was put in place to ensure that a deceased’s family members receive an adequate distribution and can appeal the distribution of an estate if they feel these conditions weren’t met.

To ensure family members receive what they are entitled to, the courts will take a diverse range of conditions into account such as the plaintiff’s current financial condition, their future needs and the nature of their relationship with the deceased.

These cases can be complicated in situations where either a relationship was strained or where the deceased became estranged from other family members. A recent case in the NSW Supreme Court saw a deceased man’s daughter apply for provision to be made after being excluded from a will.

Originally, the deceased excluded the plaintiff from the will because he believed she didn’t show him the love and respect he felt he deserved throughout their relationship.

The plaintiff’s case stated that – despite the fact their relationship had deteriorated – they were still family and she should be remunerated accordingly.

The case revealed that the breakdown of the relationship was due to the fact the deceased took exception to the plaintiff’s marriage back in 1982. The pair didn’t contact each other again until 1991, when they briefly lived together before the plaintiff was told to leave with her husband and children.

According to the plaintiff, she had tried to resolve the matter a number of times, but to no avail. She also stated she had given up part of her life in by leaving this relationship behind, another factor in the Judge’s final decision.

The Judge agreed that, based on the plaintiff’s testimony and the Family Provisions Act 1982, she should be treated as a beneficiary of the will, and would be provided for as such.

If you are looking to contest a will, don’t hesitate to ask the lawyers at Gerard Malouf and Partners for advice.

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