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Biological Daughter Brings Family Provision Claim and Wins Quarter of Estate

Case Overview

We were contacted by our client, an adult daughter wanting to make a family provisions claims against her late father’s estate.

Our client initially contacted us by phone and was provided with advice on the spot about her eligibility to bring the claim and likely prospects of success. As an adult daughter, our client was automatically eligible to bring a claim under the New South Wales legislation.

Our client was sexually abused by her paternal grandfather and due to conflict arising from these circumstances, our client had a long period of estrangement from her late father.

Garbis Kolokossian
Our Approach

A conference was then arranged with a senior solicitor and instructions taken to take steps to commence formal proceedings in the Supreme Court without delay.

Our client was sexually abused by her paternal grandfather and due to conflict arising from these circumstances, our client had a long period of estrangement from her late father.

Advice was provided to our client that the relationship with the deceased is a relevant consideration when determining whether a claim would be successful, however, in our client’s circumstances the breakdown in the relationship can be reasonably explained.

At the date of his death, our client’s father left behind one other child and a widow.

After commencing formal proceedings, the parties participated in a Mediation by telephone. With the assistance of one of our team of Will Dispute expert lawyers who led the negotiations, the matter was ultimately resolved on the basis that our client would receive a one-quarter share of the entire Estate.

Our client was ecstatic with the result and was going to use the funds for improvements to her family home.

The Result

With the assistance of one of our team of Will Dispute expert lawyers who led the negotiations, the matter was ultimately resolved on the basis that our client would receive a one-quarter share of the entire Estate.

Garbis Kolokossian Lawyer

Garbis Kolokossian

Partner
The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for to-morrow which can be done to-day. – Abraham Lincoln
Frequently Asked QUEStions

More Information About Contesting Wills

The first step in disputing a will should be a consultation with solicitors from a law firm that includes family provision claims among its areas of expertise. This conversation will involve a frank analysis of your dispute and its chance of success.

If seasoned lawyers consider your matter valid, then you can declare your intent to claim. This should take place not long after the death or grant of probate (New South Wales permits filings up to 12 months post-death, but the limit is 6 months in). You must clearly argue that you have a pertinent connection to the decedent entitling you to compensation you didn’t initially receive, and explain the “moral obligation” to you this individual should have met.

Successful arguments of these facts will earn you a day in court. Depending on the situation, you may be more likely to resolve this in mediation than before a magistrate; it all depends on how strongly the defendants oppose your claim. You can receive financial compensation in either context if your case is resolved in your favour.

You are entitled to represent yourself (and yourself alone) in all Australian legal matters, criminal or civil. But you cannot represent anyone else; e.g., without a lawyer, you wouldn’t be able to mount a challenge alongside others if all of you were disenfranchised by one particular beneficiary.

Moreover, unless you have significant experience in family law, doing so is a huge mistake. Contesting a will is an extremely complex undertaking, involving intense emotions and high tension, and while an experienced lawyer can manage these matters effectively and objectively, you almost certainly cannot.

Will Dispute Lawyers will also be invaluable in cases challenging the actions of an executor, which can go as high as the Supreme Court.

Are you wondering who is eligible to contest a will in NSW? In most cases, contesting a will can only be done by an eligible person. In NSW, an eligible person is defined as:

  • A current or (in some cases) ex-spouse of the deceased
  • A domestic partner (person who was living in a de facto relationship with the deceased)
  • A “natural” or adopted child of the deceased
  • A dependent grandchild of the deceased
  • Another person who was was at any time a member of the deceased’s household and at that same time wholly or partly dependent on the deceased
  • A person who had a close personal relationship with the deceased and was living with them at the time of the deceased person’s death
  • A person who helped add to the value of the deceased’s estate
  • Someone to whom the deceased made promises about an inheritance

Your compensation lawyers can help you file your family provision claim application and gather the evidence you need to support your claim and status as an eligible person.

You can make a claim even if:

  • You are not directly related to the deceased, as long as you fall under another definition of an eligible person
  • You are already named in the will, but you feel the provision made for you was too small or unfair
  • You are representing a minor child for their inheritance
  • You have been “disowned” by the testator
  • You have had no contact with the testator or other family members for years
  • You didn’t know the testator had passed away for an extended period of time

Getting legal advice about contesting a will in NSW can help prepare you for the claims process.

In NSW, if you are an eligible person and you wish to contest a will, you must do so within 12 months from the date of the testator’s death. In some cases, the court may make an exception if you were unaware of the death of the testator for longer than 12 months.

As an eligible person, you will likely be making a family provision claim. The court will consider many factors when judging whether or not you are eligible to receive an inheritance due to a contested will.

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