Family provisions highlighted in recent estate dispute

Date: Sep 23, 2014

Individuals have a testamentary freedom when it comes to formulating the specific conditions when they engage in estate planning. While this a freedom that every adult with the capacity to draft a will enjoys, it is often in the details of these decisions that a legal challenge to a will can originate.

This has been highlighted in a recent case in the New South Wales Supreme Court. The court ruled against a plaintiff who was challenging the will of his late mother.

In her will, the deceased left all of her estate to her husband, the plaintiff's stepfather. In their wills, both the deceased and her husband left the entirety of their estate to one another, with the combined amount shared evenly by their children once they had both passed away.

Between them, the pair had a total of four children from previous marriages and a fifth while they were married. While four of their children were happy with the existing provisions, one of the deceased's sons decided to challenge his mother's will.

The plaintiff argued that his mother's estate should be shared equally among the five children rather than waiting for her husband to pass away. He argued that this provision was necessary in order to start saving for his own retirement.

Because of the son's financial position, he was struggling to save enough in order to meet debt repayments, which made it difficult to put money away for his superannuation. The plaintiff also argued that his stepfather may change his will at a later date to exclude the him from the inheritance.

In the end, the court ruled that the deceased's will had included sufficient allowances for the son, because his share of his mother's estate would still pass to him eventually. The financial hardships that the plaintiff is experiencing were also deemed to be insufficient to justify a provision from his mother's estate at this time.

For those seeking to contest a will, this case illustrates the conditions that might warrant a provision from a will. Had the plaintiff demonstrated greater financial hardship, he may have been successful in his bid.

Likewise, if the conditions of the will did not entitle the son to a share of his mother's estate - if he was not included in his step-father's will, for example - this case may have turned out differently.

If you feel you have been unfairly excluded from a will, or would like help drafting your own, make sure you contact a wills and estates lawyer