Son and step-mum fight over legacy in family provision claim

Published 31 May 2018

Succession laws in NSW allow the courts to make a family provision order if the deceased failed to adequately consider a loved one’s needs when drafting their will. Anyone outlining their final wishes should take into account the proper maintenance, education and advancement in life of their family they leave behind.

But complexities can arise when more than one person has a legitimate claim on the deceased’s estate, particularly when it is small or comprised of illiquid assets, such as property.

This situation recently occurred when a man left his adult son out of his will and instead decided to give everything to his second wife when he died. The son pursued a family provision claim, but was he successful? Let’s find out.

Notional estate boosts inheritance for beneficiaries

According to NSW Supreme Court documents, the deceased left a modest estate of just $7,943. However, the man left behind a notional estate worth nearly $630,000, which included a 99-year leasehold on a villa within a retirement village and more than $350,000 superannuation.

The courts can make notional estate available for family provision claims, provided the plaintiff can offer a compelling case they have not received an adequate share of the deceased’s assets.

In this case, the judge’s decision was made more difficult because the plaintiff’s stepmother was currently living in the villa. If the claim was successful, she would need to move out so the property could be sold to free up money for the plaintiff’s legacy.

Judge makes a decision in family provision claim

Chief Judge in Equity Julie Ward said the plaintiff was living a modest lifestyle and had not received anything in the will, but she failed to make a family provision order in his favour.

“It cannot, in my opinion, seriously be suggested that community expectation would be that the deceased should put his long-standing wife in a position where she is required to vacate her villa in the retirement village,” she stated.

The son was ultimately unsuccessful in his family provision claim, although he will be able to appeal the decision. While the plaintiff failed to receive a legacy in this instance, claimants should not be discouraged from contesting a will if they feel they have been left out of a loved one’s estate.

Enlisting the services of no-win, no-fee lawyers enables you to pursue a claim without worrying about the potential costs involved. Book a free consultation with Gerard Malouf & Partners Will Dispute Lawyers today for more information.

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