Estate dispute begins from inadequate allowances

Date: Nov 24, 2014

One of the most common reasons for an estate dispute is disagreement over whether an individual has received adequate provision under a will. In cases where the deceased was living in a de facto relationship, this adds a new level of complexity, as former partners looking to contest a will need to demonstrate their relationship with the deceased.

This was the case with a recent estate dispute seen by the Supreme Court of New South Wales. In the case, the plaintiff was in a de facto relationship with the deceased and was a benefactor of his will. However, she then went on to successfully contest the will, arguing that she had not received an adequate provision.

How did this estate dispute begin?

The deceased and the plaintiff had been living together in a de facto relationship since the late 1990s, until the deceased passed away in 2013. Both the deceased and his new partner had been in previous marriages, which is why they did not marry over the course of their relationship.

In his will, the deceased split his estate between the plaintiff, as his de facto partner, his sister and his daughter from a previous marriage. As well as receiving the deceased's superannuation fund, the plaintiff was also granted ownership of one of the deceased's properties and a lump sum from the estate.

The other two beneficiaries also received a property each within Australia, with the bulk of the estate intended to pass to the deceased's daughter.

In contesting the will, the plaintiff argued that she should receive a greater share of the estate to provide for her ongoing care and maintenance, including ownership of the larger property that was left to the deceased's daughter.

The argument put forward to justify this claim is that the larger property held a special emotional attachment for the plaintiff, as this had been where the pair lived in the last months of the deceased's life.

What did the court decide?

In reaching a judgment, the Supreme Court agreed the provision within the will was insufficient and would need to be increased.

While on this point the judge was in agreement with the plaintiff, the claim of ownership of the larger property was unsuccessful. Instead, the plaintiff was awarded a financial settlement of $850,000 out of the deceased's estate.

Finally, the court ordered that the deceased would need to transfer ownership of the larger property that she had continued to occupy to her former partner's daughter no later than February 2015.

How can this case help others looking to contest a will?

This case revealed a number of interesting factors that can impact an individual's ability to contest a will. 

In particular, there are limits to the degree of change the courts will undertake when redistributing an estate. In this case, the judge ruled that awarding the plaintiff control of the larger property would involve effectively rewriting the deceased's will - a move which would not be justified in these circumstances. It was for this reason that the plaintiff was awarded a financial settlement rather than a transfer of property.

While there are certainly limitations to the claims an individual can make, the case also revealed the avenues that can be pursued if individuals feel they have not been given an adequate provision. Despite already receiving a sizable quantity of the estate, including property, cash and superannuation, the plaintiff was still able to contest for a larger share of the estate.

For anyone thinking about contesting the will of a recently deceased relative or partner, it is important to consult with a wills and estates lawyer as soon as possible. They will be able to advise on the correct process to take and the specific legal requirements that come with challenging a will.