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Health issues influence successful family provision claim

A person’s ability to engage in full-time employment can often influence the success of a family provision claim. This is because the choice to contest a will in this manner must involve a demonstration of financial hardship, such as being disabled and incapable or working.

In a case recently seen by the Supreme Court of NSW, a man’s ongoing disabilities became the focus when he decided to contest the will of his mother.

Providing for the future of her son

When the deceased passed away in 2012, she left a simple gift of $5,000 to each of her two adult children. The remainder of her estate, worth over $583,000, was left to her sole grandchild – the child of her daughter.

The estate was made up of minimal cash assets, with the majority of funds being tied to a NSW property. In order to pay the $10,000 bequeathed to the deceased’s children, the property would need to be sold.

After their mother’s death, both children made family provision claims on her estate. The daughter successfully won her case, due to the lack of assets she owned, coupled with the need to cover financial expenses.

During the son’s hearing, the Court highlighted the vast range of assets available within his own estate, including a home valued at $450,000, a $350,000 superannuation fund, vehicles worth $66,000 and cash assets of almost $10,000. Overall, the Courts decided the son held an estate worth just over $900,000.

When making his case for further provisions under his mother’s will, the plaintiff acknowledged his own assets but claimed his estate would fail to cover his health costs and accommodation requirements in the years to come.

In particular, the plaintiff relied solely on a Centrelink disability pension as he had lost the ability to work in 2010 after suffering a serious assault. In addition to the injuries sustained in this incident, the son also sustained an injury to his toe which, after becoming exacerbated by his diabetes, required surgery.

Furthermore, the plaintiff is living with a vast range of health conditions that are likely to get worse as he ages such as diabetes, depression, sleep apnoea and kidney disease. It was therefore concluded that he would be unlikely to ever work again.

While the Courts refused to grant the full amount requested by the plaintiff, due to his substantial asset valuation, his family provision claim successfully earned him a $50,000 allowance, significantly larger than the original $5,000 gift.

If you are concerned about your health and financial capabilities, and believe you have been treated unfairly in a family member’s will, contact a contesting wills lawyer today.

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Contesting Wills
 — Gerard Malouf & Partners

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