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Half-brothers secure larger inheritance after family provision claim

Family provision claims help those who feel they have not been adequately provided for in a will following the death of a loved one. While many people are hesitant to pursue an inheritance dispute, it may sometimes be the only option to ensure a fair share of the deceased’s estate.

This is the course two half-brothers recently took after arguing their father had been unnecessarily harsh in his will regarding the distribution of his assets. Specifically, despite having an estate worth nearly $600,000, the deceased only set aside $61,000 each to his sons.

He instead gave one-third of the estate to his nephew, who he also nominated as an executor. The remaining two-thirds was used to pay off his first wife’s mortgage, with the rest split equally between his two sons, three other nephews and a niece.

Prior to reaching NSW Supreme Court, the executor distributed $12,000 from his uncle’s estate to himself. He also gave $3,333 each to the half-brothers and approximately $4,000 each to the other beneficiaries.

According to court documents, there appeared to be little reason to withhold money from his sons, with whom he reportedly had good relationships. His youngest son even moved into his property to care for him when he became ill in 2003.

Furthermore, the half-brothers both had financial difficulties, as well as a range of health problems and limited employment opportunities.

Judge agrees with will challenge

Justice Michael Pembroke supported the half-brothers’ family provision claim, adding that it was unusual for the father to leave them such a meagre proportion of his estate.

“The evidence has satisfied me that, to some extent during his life, and particularly in the distribution of his estate, the testator’s attitude towards his sons was not merely lacking in generosity, but it was unfair and inconsistent with the standards of a wise and just father cognisant of the circumstances of his sons,” he explained.

“He was clearly disappointed by them – apparently only because neither had made a financial success of their lives – but for no other apparent reason.”

As such, Justice Pembroke decided to split the whole estate 60 per cent to 40 per cent between the younger and older siblings respectively. This resulted in none of the other beneficiaries receiving their proportion of the assets.

The judge’s decision was based on the fact that the nephews and nieces named in the will would not suffer financial hardship by giving up their share.

© 2021 
Contesting Wills
 — Gerard Malouf & Partners

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