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NSW man appeals contesting wills case ruling

A recent contesting wills case that was brought before the New South Wales Court of Appeal provides some good insight into how inheritance disputes can pan out.

Brian, the eldest son of Hazel Phillips, believed he that he had not been adequately provided for in his mother’s will. So, he opted to contest the will she had created in order to get his fair share of the estate.

In her will, Ms Phillips left a property in Cameron Street, Rockdale, to her daughter, Gaye, and another property in Gibbes Street, Rockdale, to her son, Gary. The residue of the estate was given to Brian.

In 2010, he informed his siblings that he intended to make a family provision claim.

The New South Wales Supreme Court took a number of factors into consideration when deciding whether or not Brian should have been further provided for by his mother. For instance, it was discovered that Ms Phillips and her husband, Edgar, had provided for Brian during their lifetimes, such as $20,000 to purchase a house in 1984.

He was a “not particularly advantageous” financial position when he chose to dispute his mother’s will, which his siblings put down to his “lack of financial responsibility”.

In the end, the judge admitted that although the residue left to Brian in his mother’s will was not in itself an inadequate provision, by the time the matter was brought before the court it had become one. That’s because the residuary estate was “diminished by decisions made by Gary and Gaye on Hazel’s behalf during her lifetime,” which meant it was not worth very much by the time Brian received it.

Nevertheless, the judge decided that the Supreme Court had no power under the Succession Act “to make the notional estate order sought”.

Brian opted to appeal this decision in September last year. The Court of Appeal looked at whether the provision Ms Phillips made for her son in her will was adequate and whether the judge who initially dealt with the case had made a mistake in saying that the notional estate order could not be made.

It was found the judge had erred by refusing to make a notional estate order.

This just goes to show the complex nature of contesting wills cases, and how important it is to have experienced contesting wills lawyers in your corner to ensure a positive outcome.

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Contesting Wills
 — Gerard Malouf & Partners

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