Former partner seeks family provision claim

Published 26 Aug 2014

The former husband of a woman in NSW has successfully sought a family provision claim from her estate. The decision to contest the will was made for two primary reasons.

First, neither the plaintiff nor the pair’s daughter had been given any provision for their future maintenance, even though they were eligible through the Succession Act. Secondly, the man claimed that the majority of his former partner’s estate had been built by his own contributions.

The Supreme Court of NSW oversaw this case, reading evidence based on the origins of the relatively large estate as well as documenting the relationship history between the plaintiff and the deceased.

When the woman passed away in 2012, she and her husband had been divorced for approximately a year. In her will, created just eight days before her death, the deceased left her entire estate to her sister.

At the time of her passing, the woman’s daughter was living in her home – proving that the child was dependant on her. For this reason, it was easy for the Courts to decide in favour of the daughter when making orders for provision.

To maintain the child, the Courts ordered that a legacy of $225,000 be awarded to the daughter. This money will be held in a trust until she reaches 18 years of age.

In the father’s case, the decision was more complicated, due to the breakdown in marriage. There was at no point a time when the plaintiff was financially reliant on the deceased, so normal succession rules were unlikely to apply.

However, it was proven that when the pair were married, the plaintiff was the primary contributor to growing the estate. All money and assets collected during the ten years of marriage were supported by the man’s medical practice.

While the divorce proceedings had officially split the joint estate as per typical family law, the man believed that he should be offered at least part of the remaining assets. The Courts decided in favour of the plaintiff, ordering that he receive the sum of the deceased super fund, worth $408,920. Additionally, he was given $100,000 to help care for his daughter, and $102,000 to pay his legal costs from the estate.

This was all from an estate worth approximately $982,000, which meant that the sister, while losing half of her inheritance, was still able to keep a significant portion of the estate.

If you are considering an inheritance dispute, contact a contesting wills lawyer today.

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