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Son-in-law’s family provision claim dismissed

The importance of securing the best legal advice before launching a family provision claim has been highlighted in a recent NSW Supreme Court case.

A former son-in-law of a deceased man attempted to contest the will in an effort to receive a share of his father-in-law’s modest estate. The testator’s assets comprised mainly of a property in Cambridge Gardens, a proportion of which the son-in-law claimed had been promised to him via a verbal agreement with the deceased.

The son-in-law had been living in the house with his wife – the deceased’s daughter – her three children, his spouse’s brother and the deceased. At the time of his father-in-law’s death in 2013, the plaintiff had divorced his wife and moved out of the house after admitting to an affair.

However, he claimed that his weekly payments of approximately $125 during his time at the property, as well as various home improvement projects he completed, warranted a share of the property. The plaintiff said there was an agreement between him and the deceased that his rent payments were towards the mortgage and the house was to be left to his wife after her father’s death.

Inheritance dispute decision

Justice Michael Pembroke describe the plaintiff’s case as “implausible” and “discreditable”, adding that he found it difficult to accept the son-in-law’s evidence as reliable given the overwhelming facts to the contrary.

Not only did the remainder of the deceased’s family dispute the plaintiff’s claim on the house, the father-in-law’s own notes written before his death made no reference to the plaintiff’s right to the property.

“In this case, the circumstances in which the plaintiff ceased to be the son-in-law of the deceased, and ceased to live in his house, reinforce the view that I have reached, that the deceased had no moral obligation towards the plaintiff at all,” Justice Pembroke stated.

Furthermore, the son-in-law had previously rejected a settlement of $22,000, which the deceased’s sons had offered out of their own inheritance to bring a halt to proceedings.

The judge said that in ordinary circumstances the plaintiff would not be required to pay the costs of the defendant’s legal fees in a failed family provision claim.

However, Justice Pembroke ordered the son-in-law to pay the $50,000-$60,000 in defendant’s fees because the case had been particularly frivolous and the plaintiff rejected a generous settlement.

“This is an unfortunate situation for the defendants. In the view that I have reached, it should never have occurred,” he concluded.

© 2021 
Contesting Wills
 — Gerard Malouf & Partners

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