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Family provision claims increase sons’ inheritance

Many people assume that because they are offered small gifts in a will, they are unable to lay family provision claims. However, contesting a will does not necessarily have to be limited to those who received nothing.

In fact, depending on the size of the estate and the moral obligation the deceased had to care for those in the will, inheritance disputes can often increase the amount each beneficiary receives.

A fair share

A recent example of this was overseen by the Supreme Court of NSW this month, when two brothers laid family provision claims against their mother’s estate.

While the sons were both named in the deceased’s will, each felt that their share of the estate was inadequate. In particular, the will left by their mother gifted $20,000 to each of the brothers and offered the remainder of the assets – worth more than $280,000 – to their sibling and his children.

Much of the estate was tied up into a property, which the mother wished to be given wholly to the one beneficiary. According to the Supreme Court, a conversation between the deceased and the defendant showed that she was aware her actions had ill consequences on her other sons. This was demonstrated when she warned the beneficiary that he would have to “stand up for yourself”.

When deciding whether the $20,000 provision was adequate for the two plaintiffs, the Court thoroughly investigated the sons’ relationship with their mother. Additionally, their financial standing and immediate and future needs were also under scrutiny.

Through the process, the Courts found the son offered the majority legacy had a much closer relationship with the deceased than his brothers. He was, in fact, living in the same town as his mother and had demonstrated a close personal connection with her.

The plaintiffs, on the other hand, were living apart from their mother and had what the Court described as a “mellowing” relationship.

However, despite the stark differences in relationships reported by the children, the Courts decided that each plaintiff was to be given additional provision in the will.

The amount offered to each son to cover their financial needs and obligations was 21 per cent of the estate. This left 28 per cent for the remaining son and 15 per cent each for the grandchildren. In order to fulfil this order, the property held by the deceased will be sold.

If you believe you have not been adequately provided for in a family member’s will, get in touch with a contesting wills lawyer today.

© 2021 
Contesting Wills
 — Gerard Malouf & Partners

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