Son wins share of property after being left out of father’s will

Published 14 Apr 2015

Contesting a will is an option for eligible people who feel they have been inadequately provided for out of a loved one’s estate.

A man recently decided to take this approach after his father left him out of his will, instead leaving the entirety of his assets to a different son.

The deceased left a fairly modest estate, largely comprising a property at Mount Pritchard in Sydney that was valued at approximately $400,000. He also possessed a car worth $1,500 and bank accounts containing $1,750.

According to the plaintiff, he had performed a number of duties for his father, including caring for him in the years leading up to his death, maintenance on his property and repairs on his car after he was in an accident.

However, the defendant – the son who was named as the executor and only beneficiary in the will – argued that his brother had a rocky relationship with their father. In fact, he produced a note allegedly written by the deceased that claimed the plaintiff had attempted to get his father to change his will while receiving medication for an operation.

The deceased also wrote in the document that the plaintiff was trying to force him into a retirement village.

Family provision claim decision

Justice Phillip Hallen said there was no evidence to suggest the plaintiff was looking to place his father in a community care home and therefore said it was difficult to take the statements in the deceased’s note as entirely accurate.

In reality, the plaintiff had arranged for a carer to visit his father in his home – a service the son paid for out of his own pocket.

The judge also highlighted certain behaviour that reflected poorly on the part of the defendant. It was revealed that the property listed in the estate had been rented out after the father’s death, with the money going into a separate account that was not listed among the assets to be distributed.

Ultimately, the judge ruled that the plaintiff had not been adequately provided for and deserved to be a beneficiary. As the majority of the estate’s value was tied up in the house, Justice Hallen ordered that the plaintiff receive 37.5 per cent of the net proceeds gained from the sale of the property.

This would ensure that both beneficiaries would be equally affected in the event that the home sold for more or less than its estimated value.

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