Granddaughter cut from Will, compensation claim fails

Published 07 Dec 2018

A recent case before the Supreme Court of New South Wales brought a Will into question, namely whether or not the deceased had testamentary capacity when she wrote the final version of the document. The family is now in conflict over who should receive the assets.

The 2007 revisions

The woman passed away in 2015 at the age of 82, preceded in death by her daughter, who died in 2011. She still had one living child at the time of her death, her son.

The proceedings are between the deceased’s granddaughter (the plaintiff) and her son (the defendant). The plaintiff is making a claim for provision from the estate, even though she was cut from the Will.

In the original Will, the deceased had named her daughter as executor of her estate. She also set forth that if either of her children died before she did, that their portion of the estate would then pass to their own children. However, she revised her Will in September 2007, naming her son as the executor and her enduring guardian. She did not include the provision that her grandchildren would receive any portion of the estate.

The plaintiff made a family provision claim, saying that the deceased lacked testamentary capacity when she had removed the applicable grandchildren provision from her Will. If this would have been true, it would have made the first Will, created in 1998, the true final wishes of the deceased.

The judge’s findings

The solicitor who helped the deceased prepare her Will in 2007 did not detect that anything was wrong with her mental state. There was also nothing brought in evidence that indicated the deceased didn’t understand how substantial her property was.

She was able to live in her home on her own for two years after she created the Will, further evidence that she did not lack testamentary capacity. The judge decided that the granddaughter of the deceased did not have a valid right to any of the estate passed to the defendant, and her claim was dismissed.

If you believe you were treated unfairly in a Will, you may be eligible to make a family provision claim. Get in touch with our experienced lawyers at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers to learn about the legal services we offer. We also provide free consultations on a range of cases.

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