NSW Supreme Court has awarded a man a $420,000 property from his father’s estate after the deceased left his son out of the will.
The plaintiff and his father had not spoken for more than four years prior to the latter’s death of cancer in August 2011.
Despite the lack of contact, they were not considered estranged because there appeared to be no hostility between the two nor a specific incident that led to them drifting apart.
However, the plaintiff did not pursue a family provision claim until June 2015. Under the Succession Act 2006, claimants must file a summons within one year of the deceased passing away.
The plaintiff was therefore nearly three years late. So how was he still successful?
Why was the claim late?
The Act states that a judge can put aside the one-year time limit if the claimant has “sufficient cause”.
On this occasion, the plaintiff was not aware of his father’s death until January 2012. Furthermore, he did not know he was entitled to make a claim on his father’s estate until 2015.
In the will, the deceased left everything to his brother, but he also died soon after. This meant the estate was bequeathed to their 95-year-old mother, who resided in a nursing home in France.
The plaintiff helped his grandmother through the probate process after she promised he would inherit everything when she died. The relationship between the two became strained, leading the plaintiff to seek legal advice, whereby he discovered he could pursue a dispute for provisions.
Justice Michael Slattery accepted that the man did not hear about his father’s death immediately, was not aware of his rights and pursued a claim soon after finding out he could. He allowed the claim to proceed.
Judge’s ruling on family provision claim
Justice Slattery described the man’s claim for provision as “strong”. The plaintiff was the deceased’s son and was left nothing at all in the will, despite no obvious estrangement.
The assets available for distribution only totalled $338,400. However, the grandmother had already received a $420,000 Stanmore property – which provided rental income of $240 a week – from the estate.
Justice Slattery ruled that the dwelling should be designated as part of the notional estate, meaning it could be distributed to claimants. He awarded the property to the plaintiff but ordered that the man pay his grandmother $500 a month until her death from the rental proceedings.
This provided the plaintiff with a regular income, as well as the property asset, while offering the grandmother financial security for the remainder of her life.
Are you considering a family provision claim? Contact Gerard Malouf & Partners Will Dispute Lawyers to see how we can help.