Woman awarded $100,000 after contesting mother’s Will

Published 31 Oct 2018

Finding out that a parent has left you out of their Will can be devastating, particularly when it is unexpected and comes at an already traumatic time.

Adult children are the most common claimants in Will disputes, according to a study compiled by the University of Queensland and other leading academic institutions. The research revealed 76 per cent of family provision claims pursued by the deceased’s children are successful.

One woman recently discovered how accommodating the courts can be in these circumstances. She pursued an inheritance dispute against her mother’s estate after being left out of the Will and was awarded $100,000, even though her claim fell outside the statutory time limits.

But what swayed the judge’s decision in her favour? Let’s take a closer look at the case.

Why was the plaintiff disinherited?

The deceased passed away in 2015, leaving behind an estate worth approximately $1.5 million and naming her younger daughter – the defendant – as sole beneficiary.

Meanwhile, the deceased’s only other child – the plaintiff – was written out of the Will. According to the document, which was executed in January 2005, the deceased disinherited her elder daughter for two reasons:

  1. The plaintiff was already financially secure.
  2. The plaintiff and her son had been disrespectful to the deceased while living in her home.

However, the plaintiff argued the Will was written after a falling out between the two, which was long in the past. She said they had reconciled in the years prior to the deceased’s death, although the defendant claimed her mother and the plaintiff still had a rocky relationship despite the reconciliation.

The plaintiff was also five months late in pursuing a family provision claim. All disputes in NSW must be raised within 12 months of the deceased’s date of death, unless an appropriate reason for the delay is provided.

Contesting a Will: The judge’s decision

Justice Philip Hallen allowed the claim to proceed, despite admitting the plaintiff’s reasons for the delay were unconvincing. She had alleged she did not know about the time limit, but the judge thought this was unlikely given the plaintiff had enlisted the services of an experienced lawyer.

Nevertheless, he stated: “I am satisfied that an order for provision, in favour of the plaintiff should be made. A refusal to extend time would result in prejudice to the plaintiff.”

Justice Hallen awarded the woman $100,000, which would give her a financial buffer against contingencies, while still honouring the competing claim of the defendant.

This case highlights how the courts often look favourably upon adult children of the deceased when they have been completely disinherited, even when estrangement is a factor.

Would you like to discuss contesting a Will in NSW? Please get in touch with Gerard Malouf & Partners Will Dispute Lawyersto find out whether you are eligible to claim.

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