Man with financial need wins additional provision of deceased mother’s estate

Published 22 Aug 2018

If a beneficiary can prove financial need, a family provision may be approved that would grant them a larger portion of an estate.

A deceased woman and her late husband of 68 years had adopted two children, who are now in their 60s and 70s. The older of the two, the plaintiff in a recent Will dispute case, has three children. His mother had left him, each of her three grandchildren and a friend portions of her estate in her Will.

The allocations in the Will

The funds from her estate were first to be used for the funeral and other arrangements after her death, and then split in varying percentages to the family:

  • 30 per cent to her oldest grandchild.
  • 10 per cent to each of the other two grandchildren.
  • 10 per cent to her nephew, the executor.
  • 10 per cent to the plaintiff (her son).
  • 15 per cent to her daughter.
  • 15 per cent to a friend.

The value of the estate was over $600,000 when the woman died, made up of an accommodation bond and cash in the bank.

Claim for family provision

In July 2017, the plaintiff filed a family provision order to get a greater sum out of the estate of his deceased mother. At the time of her death, the two had been estranged for about two years. The plaintiff does not have much savings and has multiple health problems. Thus he is claiming that as a family member he should be allowed an additional provision from the estate, more than the 10 per cent stated in the Will (which would have been about $62,000).

The plaintiff expressed bitterness that the other family members had disposed of a large portion of the deceased’s property without his consent, including a grand piano and a vehicle. However, the plaintiff’s son indicated that he had tried to get in touch with him about those items, and that the plaintiff had not answered or returned any calls or text messages about it. The judge decided that the plaintiff did not take the opportunity to take any of those possessions and could not make a claim to them now.

However, the judge decided that because the plaintiff had limited financial resources, debilitating medical conditions, no earning capacity and no one in his life to support him, that the 10 per cent allocation made for him in the Will would not be adequate for his life advancement or maintenance. Additionally, he had taken care of his mother in the years before their estrangement, and most of the other beneficiaries had not.

It was stated that the plaintiff should receive 20 per cent from the estate, about $95,000. The shares of the other beneficiaries were reduced accordingly.

Navigating Will disputes is never a simple task. Allow our experienced lawyers at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers to assist you in your claim. Get in touch today for a free consultation.

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