Son of deceased granted family provision order of $75,000

Published 09 Nov 2018

When children or family members are specifically excluded from a Will, it’s still possible for an eligible person to contest the Will and receive substantial compensation from the estate.

In a recent case, a son made a claim for a family provision order from his late mother’s estate, after being left nothing in her Will.

The circumstances of the claim

A woman of 83 passed away recently, leaving most of her estate to her oldest son. Her youngest son and his wife received nothing, except that their two children would each receive a gift of $20,000 upon turning 25.

The youngest son is the plaintiff in the case, and he is an eligible person to make a claim for a family provision order under the Succession Act 2006. Both the deceased and her late husband specifically excluded their youngest son in their Wills because he had effectively separated from the family after he got married.

The plaintiff submitted that he should receive a legacy of $450,000 from his late mother’s estate, based on his need to pay his mortgage debt, credit card debt, and a car lease, in addition to his wife’s liabilities. The defendant, the plaintiff’s brother who received most of the estate, submitted that the plaintiff should receive just $50,000.

The court’s reasoning

There was no doubt in the court proceedings that the plaintiff was eligible to make a claim and had done so within the required time period. The judge also took into consideration that the plaintiff suffered from ill health, making it difficult for him to work. It was stated that the plaintiff’s relationship with his parents was not a good one, partially because of a poor relationship between his wife and his late mother. Other family misunderstandings likely contributed to the sour relationship.

The plaintiff has since claimed that part of the reason he no longer wished to be close to his parents was that his mother had sexually abused him when he was young, and that his therapist had advised him to keep his distance from her.

The judge also considered that the estate left behind by the mother was substantial enough to accommodate a contribution to the plaintiff, and that he was “a natural object of her bounty.” Though, he would have had a greater claim to the estate had he remained close to his parents, the judge said.

The decision

The court granted an order for provision from the estate to the plaintiff of $75,000, to be taken out of the defendant’s share of the estate. This amount was considered enough to provide some financial relief for the plaintiff and his family, and commensurate with his relationship with his late mother.

If you believe you are eligible to contest a Will, or think you have been treated unfairly in a Will, our attorneys at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers can help. Get in touch with us today for a consultation.

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