Son pursues family provision claim against mother’s notional estate

Published 12 Sep 2017

The son of a woman who left no provisions in her will for her five children has challenged the document at NSW Supreme Court

Despite the deceased having almost no assets in her estate, her son pursued a family provision claim in an effort to receive a share of his mother’s notional estate.

In her will, the deceased left everything she owned to her husband – the defendant – including her share of a Sydney property that the pair jointly owned.

This property formed the majority of the notional estate, and the plaintiff wanted either a $200,000 legacy from the proceeds of the home or a one-third share of his mother’s half of the dwelling.

Weighing up competing family provision claims

Justice Philip Hallen was required to evaluate various points of law when making his decision, including the competing needs of the parties involved, the deceased’s final wishes and the size of the estate.

The plaintiff was 45 years old at the time of the proceedings, with serious mental health problems that prevented him from working. He was in receipt of a disability pension and lived in public housing.

The 71-year-old defendant, who was married to the deceased for 24 years, has lived at the property since 1972, having bought it with his first wife. He reported suffering from arthritis, cirrhosis of the liver, pancreas inflammation and a range of other ailments.

Meanwhile, the deceased made five wills during her lifetime, almost all of which left the entirety of the estate to her husband. Her children – four daughters and the plaintiff – were set to receive nothing in all wills unless the deceased’s husband died first.

Was the plaintiff successful?

Justice Hallen ruled that the deceased had not made adequate provisions for her son in the will – but decided against awarding the plaintiff a share of the notional estate.

The judge argued that the defendant’s competing claim was strong. The deceased’s husband had cared for his wife diligently in the years leading up to her death; he was currently living in the property and would need to move if it were sold; and he had few other assets to fund his remaining years.

The defendant had also made significant financial contributions to the purchase, maintenance and improvement of the Sydney property over the last 40 years.

As such, Justice Hallen rejected the plaintiff’s claim and made no order as to his costs.

Would you like to know more about family provision claims? Please contact Gerard Malouf & Partners Will Dispute Lawyersto discuss your case.

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