Insufficient Share of An Estate

Published 01 Mar 2012

In Australia, under the various State legislation, people who have received an insufficient share of an Estate have the ability to challenge the Will.

A recent decision of the Supreme Court of New South Wales is a good illustration of what you can do if you believe that you have received an insufficient share of an Estate.

In Aplin & Aplin v Aplin [2011] two young children of the deceased, aged eleven years and nine years, challenged their father’s Will on the grounds that it did not provide for their proper maintenance and support.

Their father was 38 when he was killed whilst serving in Afghanistan as a member of the Australian Armed Services. Their mother and father were divorced and their father had remarried in 2008. He and his second wife did not have any children together however his second wife had two children from a previous marriage aged fifteen years and thirteen years. Under the Will their father left them ten per cent of his whole estate to be shared equally between them with the remainder of his Estate left to his second wife.

The total value of the Estate was approximately $900,000.00 so his children would receive approximately $41,000.00 under the Will whilst his second wife would receive the remainder being approximately $859,000.00.

The Court was firstly required to consider whether the children were ‘eligible persons’ being persons entitled to commence proceedings under the New South Wales Succession Act. Under this Act only certain categories of people are entitled to commence proceedings and these include:

  1. A current or past husband, wife or de facto partner of the deceased;
  2. A child of the deceased;
  3. A grandchild of the deceased who was wholly or partly dependent on the deceased;
  4. A member of the household of the deceased who was wholly or partly dependent on the deceased; and
  5. A person with whom the deceased was living in a close personal relationship. A close personal relationship means a relationship between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.

After deciding the children were eligible persons under the Act the Court then considered whether adequate provision for the proper maintenance or advancement in life for the children had been made in their father’s Will. In considering this the Court looked at the anticipated needs of the children and found that that the provision made for them in their father’s Will was inadequate.

The Court then ordered that each child of the deceased should receive a lump sum of $110,000 from the Estate with their father’s second wife to receive the remainder. In addition to receiving an increase in their share of the Estate the Court also ordered that the Estate pay the legal costs of the children.

As shown in the above recent case there are avenues available if you believe that you have received an insufficient share of an Estate. To determine whether you are eligible to make an application to increase your share of the Estate and the prospects of success of such an application you need to speak to legal experts who practice this area of law on a daily basis.

Get Good Legal Advice

Contact GMP Contested Wills Lawyers to book a free first consultation. At the first consultation we will discuss with you in a professional friendly manner the details of your situation and advise you if and how you should proceed.

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