Family provision claim fails in recent estate dispute

Date: Oct 30, 2014

A recent legal case has illustrated the issues that arise following an estate dispute, with the recipient of a family provision order arguing for a reviewed share of her father's estate.

This case originated in court action which was concluded in May 2014. In the case, the plaintiff argued her relationship with her father meant she deserved a share of his estate, even though no provision was made in his will.

The deceased had been a successful businessman, building a sizeable estate which he left to his wife, along with a large notional estate which she also inherited.

In his will, the deceased stipulated that his children would not receive any share of his estate, as they had received adequate support during his lifetime. However, the children were named as beneficiaries of a trust designed to ensure their ongoing maintenance and upkeep.

This decision was contested by the deceased's daughter, who argued she was eligible to receive a share of the estate, under the conditions laid out in the Succession Act 2006 (NSW). In particular, she argued that her financial situation was serious enough that she required a provision from her father's estate. 

In the original decision, the court ruled the daughter was eligible for a share of the deceased's estate, awarding a payment of $175,000 to be made to the plaintiff.

This decision has since been contested by the plaintiff, as she was unable to come to a solution between herself and the deceased's widow.

Because a large part of the estate consisted of shares and property, the plaintiff argued that a cash substitution (the solution presented by the deceased's widow) would be an unfair alternative. 

On the other hand, the defendant suggested that because these assets were held in a form that made it difficult to convert them into cash, it was appropriate to substitute these with a financial payment.

The judge disagreed with the daughter's assertion and ordered that the original payment of $170,000 should be made in cash and drawn from the balance of the estate.

For anyone considering contesting a will, this case illustrates the variety of considerations that will be made by the court. While the plaintiff was successful in contesting the will in order to receive a provision, she was ultimately unsuccessful at negotiating the form of this payment.

If you are considering contesting a will, make sure to contact a wills and estates lawyer.