Will errors create family conflict about property ownership

Published 21 Dec 2018

When beneficiaries contest a Will, proceedings often lead to family conflict and lengthy legal battles. A recent case brought to question what a deceased man had intended after a clerical error was discovered in his Will.

Background of the case

A deceased farmer had two properties in New South Wales, one known as Malaya and one as Boronga. He had a wife and five children resulting from the marriage – four daughters and one son.

He prepared a Will in 2003, which left most of his estate to his four daughters jointly, except for the Boronga property. There was nothing clearly stated to indicate who that should go to.

In 2008, the deceased was no longer mentally capable of managing his affairs and began living in a nursing home. He had previously granted power of attorney jointly to his wife and his son in 2000. Acting accordingly, his wife addressed the issue of the Boronga property by transferring it jointly to the four daughters.

The deceased passed away in late 2012, and two years later, his son commenced proceedings against his mother and sisters regarding Boronga. The judge decided to give the son the property and requested that the four sisters transfer their ownership title over to him.

The initial judge had decided that not naming a devisee for the Boronga property in the Will was a clerical error and that the deceased had clearly meant to leave it to the son. The wife was found to have breached her fiduciary duty to her late husband by transferring the property to the daughters.

The sisters then appealed this decision.

The appeal

In the recent appeal to the Supreme Court, the judge mostly agreed with the original trial’s findings – that the wife had breached her fiduciary duty and that the Will had meant to leave the Boronga property to the son. The sisters, the appellants, were ordered to pay the costs for their brother, the respondent.

However, because there have been multiple claims and cross-appeals, and the son has now been granted leave to cross-appeal, the final decision about the property is yet to be fully decided.

Have you been treated unfairly in a Will? If so, call us to receive a free consultation. Our experienced attorneys at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers can guide you through making a family provision claim in NSW.

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