Estate dispute begins after insufficient distribution

Date: Dec 08, 2014

While many estate disputes begin because an individual has been left out of a will, there are other times when this disagreement will arise because the distribution of an existing will has not been sufficient.

This was seen in a recent case before the NSW Supreme Court, in which the child of the deceased made the argument that they deserved a larger share of the estate than the will had left for them.

The deceased's will stipulated that her estate should be divided among her children and grandchildren. A $400,000 payment was made to one of her grandchildren, while the remainder of the estate was to be split four ways, with two parties receiving 15 per cent and two receiving 35 per cent.

Following this announcement, one of the woman's sons - who was only entitled to 15 per cent of the remaining estate - took legal action to argue for a larger provision, so that he may purchase a three bedroom house (estimated at about $620,000).

An alternative was also raised, where the son might receive an increased percentage in order to provide for the ongoing support of himself and up to three dependents, estimated at $400,000.

The executor, who was also the defendant in this case, argued that this payment should not be made, largely due to the way the plaintiff was alleged to be likely to spend his money.

While the judge agreed that a further provision from the estate would be necessary, the Court  did not grant the provision that the plaintiff had requested. Instead, the plaintiff was granted an increase in his share of the estate, rising from 15 per cent to 24 per cent.

This equated to $300,000, less than the plaintiff had originally intended but still a larger share than he would have otherwise received. The additional cost was deducted from the other recipients, with each losing between 1 and 4 per cent from the share laid out in the will.

The Judge also dismissed the assertion that the way the plaintiff chose to spend this money was relevant.

If you would like advice on contesting a will over an insufficient family provision, the first step is to discuss this with a wills and estates lawyer.