Two sons make successful family provision claim on father's estate

Date: Feb 18, 2015

Family provision claims will hinge on a number of different conditions that individuals making this application will need to satisfy for their claim to be accepted by the courts. Alongside the need to demonstrate they are eligible under the Succession Act 2006 (NSW), those seeking a provision will need to demonstrate any current provision is insufficient.

In a recent case before the NSW Supreme Court, this requirement was seen very clearly, with two half-brothers succeeding in making a family provision claim against their father's estate.

The two sons were both granted a small share of their father's estate in his will. The largest share of the man's estate was awarded to the deceased's nephew, who received a third of the total value and was appointed executor. The document then split a portion of the estate equally between the man's two sons and four of his nieces and nephews, along with a provision to pay off his first wife's mortgage.

As a result of this split, the two children then appealed to the courts to receive a more significant portion of the estate, owing to the ongoing relationship they both had with the deceased and his moral duty to provide for his children.

The distribution of the estate was also complicated further by the deceased's wish to pay off the remainder of his first wife's property. The man's first wife outlived him by only two months, with the property sold and the estate distributed according to her will before this case began.

In reaching a verdict, the courts considered the financial position of both the children, along with that of the man's nephew, who was originally the main benefactor. The relationship each child had with the deceased was also examined, with the courts satisfied they maintained a good relationship prior to his death.

Based on this evidence, the Judge ruled in favour of the plaintiffs. The two children were awarded the entirety of the estate, minus their legal fees. Due to the differing financial position of the half-brothers, the estate was split 60:40. 

For others in a similar position, this case highlights how important it is for individuals to contest a will if the existing provision is insufficient. In cases where close family members haven't received an adequate provision, proving their relationship they had with the deceased - while also demonstrating their own financial position - is essential for a successful claim.

To find out more, make sure to contact a specialised wills and estates lawyer.