Inheritance claim fails because plaintiff had already been awarded a house

Published 15 May 2016

In the NSW Supreme Court case of Penfold v Predny (2016), a plaintiff who claimed being given a house by her father’s estate was not enough has failed in her claim for a greater share of the estate.

How the dispute occurred

The plaintiff, whose father died in April 2014, brought her claim under the Succession Act 2006. One of the defendants was the plaintiff’s brother and he was named as an executor in the deceased’s will and was granted probate. The plaintiff claimed she had not been left with adequate provision by her father’s will. However, the deceased’s solicitor presented evidence that the deceased had given his daughter, the plaintiff, a house worth $97,000 over a decade ago and this was intended to count as an early inheritance.

The plaintiff claimed to have had a strong relationship with her father and mother and claimed family law therefore meant the estate must give her an equal share of the will. However the judge noted that Family Law Act requirements are “defined by the relationship which actually exists between parent and child during their joint lives” – not the relationship the plaintiff claimed she had with her father.

Judge’s decision finds errors both in the plaintiff’s claim and  deceased’s will

In his decision of April 2016, the judge found that the deceased gave instructions to his estate solicitor that included a mistaken valuation of his estate. More importantly however, the judge said “the decision for the Court depends upon what is “adequate” and “proper,” so “the deceased’s methodology […] is not decisive of the result […] the Court must determine.”

When the judge carefully examined the weekly income of the plaintiff and her husband and he found that they didn’t have much money to spare as the plaintiff lived off a disability benefit each week. The judge found the reason the provision claim failed was because the plaintiff did not have a huge amount of costs that need provisioning.

It’s important to know legal costs can go either way

In the plaintiff’s favour was the fact that she did not have to pay the legal costs of the defendant because of her precarious financial situation. However, the judge would not rule that the estate cover the plaintiff’s legal costs.
The “relatively small” size of the deceased’s estate was a part of the reason the judge decided the plaintiff has already been given a large enough portion of the estate.

What we can learn from this case

The media seem to report more often on will and estate cases in which someone with fewer assets is victorious over someone with greater assets. However, real case law means judges will make their decisions based on extremely detailed submissions about the financial positions of plaintiff and defendant. These submissions require an outstanding legal team to help prepare, and contesting wills experts Gerard Malouf and Partners are ideal for disputes such as these.

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