Man fights daughter for bigger share of his mother’s inheritance

Published 27 Jul 2017

A man has pursued a family provision claim against his own daughter in order to gain a larger share of his mother’s estate.

The plaintiff’s mother left him just $50 in her will but bequeathed her granddaughter a property in Merewether worth approximately $650,000. The man was estranged from both his daughter and mother when the latter died.

Describing her relationship with her father, she said he had “never been a significant part of my life physically or emotionally”. This is largely due to the fact that her father spent 13 years in Thailand after authorities arrested him in possession of heroin.

According to NSW Supreme Court documents, the plaintiff was first sent to a hospital for mental health problems before being transferred to prison, where he remained from 1989 to 1998. Upon his release, he returned to Australia to live with his parents and his daughter in the family home.

Important factors in the will dispute

The defendant, the plaintiff’s daughter, claimed her father had a poor relationship with her grandmother, which began after the deceased challenged her son over his parenting.

The plaintiff subsequently moved out of his parent’s home, remarried and had another child. His relationship with the deceased worsened over time; he attended his father’s funeral in 2010, but didn’t see his mother until 18 months after that, when he visited her home to collect some tools.

They argued, and the plaintiff never saw her again, although they spoke at her behest on a handful of occasions until her death in 2015. He also visited her on her deathbed after she suffered a cerebral haemorrhage, but she was in a coma and never recovered.

Judge rules in favour of the plaintiff

Despite the faltering relationship between mother and son prior to the former’s death, Justice Philip Hallen ruled that the deceased had clearly not provided adequate provisions to the plaintiff in her will.

The plaintiff is permanently disabled and has limited earning capacity, while his 33-year-old daughter, who received the majority of the estate, is well educated and earns more than $75,000 a year as a music teacher.

Justice Hallen awarded the plaintiff 15 per cent of his mother’s estate, which equates to approximately $70,500. The remaining 85 per cent went to the defendant, who will receive nearly $400,000.

This case highlights how eligible people can still contest the will of deceased loved ones even if they were estranged from them. Testators have an obligation to provide for their children, and the courts regularly side with plaintiffs who receive nothing from their parents’ estates.

Are you considering contesting a will? Please contact Gerard Malouf & Partners Will Dispute Lawyers.

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