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Man wins family provision claim against mother’s estate

Family provision claims help people who feel they have not been adequately provided for in a loved one’s will. If successful, the plaintiff often receives an increase in their share of the deceased’s estate.

This is what happened to one man who recently launched a claim on his mother’s estate after she died in 2013. He was one of four siblings, with two brothers and one sister.

One of the man’s brothers acted as executor to their mother’s will and was therefore the defendant in the case. The mother’s estate was largely comprised of a $1.875 million property in Kensington?, NSW.

In the will, she gave a $400,000 lump sum to the defendant’s daughter to repay a loan her son had provided to construct a building on the site of the Kensington property.

The rest of the estate was divided as such:

  • 15 per cent to the deceased’s daughter
  • 15 per cent the plaintiff
  • 35 per cent to the defendant’s daughter
  • 35 per cent to the remaining brother

The defendant received nothing from the estate, instead suggesting that his mother offer his share to his daughter, in addition to the $400,000. However, the plaintiff argued that he had not received an adequate share of the assets, particularly as he had several dependants in need of additional care.

Son launches family provision claim

NSW Supreme Court was asked to consider a number of factors when making a decision on the plaintiff’s family provision claim.

Firstly, he was a full-time carer for his wife, who has tetraplegia – a condition that causes aches and stiffness in the back, as well as arthritis in the arms.

The man’s son also suffers depression and social anxiety disorder, which requires medication and therapy sessions. As such, the plaintiff was unable to work due to his home responsibilities.

However, the courts also heard that the man previously had money problems due to a gambling and alcohol addiction. During cross-examination, he claimed these were no longer issues.

Ultimately, the judge decided in the plaintiff’s favour, claiming the will had not adequately provided for his needs. This resulted in his previous share of the estate rising from $187,570 to approximately $300,000 – 21 per cent of the total.

The additional money was subtracted from the other beneficiaries, with the sister’s proportion dropping from 15 to 14 per cent and the plaintiff’s brother and niece receiving 31 per cent each.

© 2021 
Contesting Wills
 — Gerard Malouf & Partners

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