Plaintiff pursues 43 grounds of appeal in will dispute

Published 12 Mar 2018

A man has launched an appeal after he was unsuccessful in contesting his deceased father’s will. The plaintiff put forward 43 grounds on which he believed the trial judge had erred during his decision-making.

Let’s examine how the original trial unfolded and see whether or not the appellate judges overturned the decision.

Why did the man contest the will?

The plaintiff’s father and mother possessed equal shares in several properties they both owned. When one person dies, their interest in a home passes to the surviving individual in these types of arrangements.

The father passed away four years ago. Nevertheless, he wrote in a 2006 will that he wanted his three children to receive his share of each property and urged his executors to negotiate with his wife to ensure this happened.

Unfortunately for the plaintiff, his father did not own a share in the specific home that he left his son in the will. The father had already agreed a property settlement with his wife, giving her total ownership of that particular dwelling.

An asset that is distributed in a will is considered ‘adeemed’ if the will maker does not actually own it at the time the document is signed. Ademption means the legacy is void and the beneficiary receives nothing.

Original trial decision and appeal

The plaintiff contested the will in an effort to receive comparable provisions from his father’s $1.7 million estate.

His inheritance dispute included a family provision claim, as well as challenges to the will’s validity. However, the trial judge ruled against the plaintiff on all grounds.

The family provision claim failed, in part, because of the man’s inconsistent evidence regarding his financial position, which was far stronger than his affidavits and testimony suggested.

On appeal, the plaintiff provided a comprehensive list of 43 appeal grounds, including:

  • His father lacked testamentary capacity;
  • The judge was biased;
  • The dismissal of the family provision claim was incorrect; and
  • The judge committed procedural errors when making his decisions.

Final decision on appeal

Despite the litany of complaints, the appellate judges ruled that the trial judge was correct and they rejected all grounds of appeal.

Ultimately, the plaintiff’s father was not the owner of the property that he bequeathed his son at the time he wrote his 2006 will. The son was therefore not entitled to a share in the home or its replacement value via a dispute.

While this particular claimant didn’t win, three-quarters of will contestations in Australia are successful, according to research from the University of Queensland and other academic institutions.

So if you would like to discuss contesting a will, please contact Gerard Malouf & Partners Will Dispute Lawyers for more information on our no-win, no-fee services.

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