Insufficient provision leads to estate dispute

Date: Nov 04, 2014

A recent legal case in the NSW Supreme Court has illustrated the impact of a de facto relationship on an estate dispute, along with the importance of updating a will regularly.

The case relates to the estate of a man who passed away in 2013. In his will, the man left the bulk of his estate to his wife. In the event that his wife passed away before him, he wanted his estate passed to his two children.

When the two divorced, the man's former wife became ineligible to receive his estate, so his two children became the main benefactors, each receiving half.

However, since divorcing his wife in 1999, the man entered into a subsequent relationship. Although never married, the man maintained a consistent de facto relationship before his death. Despite this, the man never changed his will to include his new partner.

Following his death, the man's de facto partner contested his will, arguing that she was eligible under the Succession Act 2006 (NSW) to contest the man's will and receive a share of the estate to provide for her ongoing maintenance.

The judge ruled the woman was both eligible to receive a share of the estate, and that the existing distribution of the will was unable to support the man's de facto partner.

As a result, the judge ruled that the woman should receive a further payment of $350,000 to provide for her ongoing maintenance. As well as confirming the plaintiff was eligible, the Courts took into consideration her financial position and needed to estimate her ongoing needs.

The woman's legal costs were also provided for out of the deceased's estate as part of the financial settlement.

This case highlights a number of issues that can arise during estate planning. In particular, the case draws attention to the need to update a will regularly, especially when it comes to de facto relationships.

The court's judgement also illustrates the legal significance of a de facto partnership, especially when it comes to the right to receive a provision within an estate dispute.

For anyone who feels they have not received an adequate provision within a will, the first step is to contact a wills and estates lawyer. This professional will able to advise on the best approach to take when looking to contest a will.