Estate dispute leads to successful family provision claim

Date: Dec 19, 2014

For partners of a deceased person, deciding whether or not to contest a will can be a difficult decision to make. However, when a sufficient provision hasn't been made, taking this action can be an important step towards securing long-term support.

This was seen recently in a case before the NSW Supreme Court, in which the de facto partner of the deceased received a family provision order from the man's estate in order to provide for her ongoing maintenance.

The case began after the deceased's passing in 2013 at the age of 89. The man's will appointed his partner as the joint executor, along with his daughter who was also the defendant in this case.

In the man's will, he left the plaintiff a range of financial support provisions, including a fund which could provide for her ongoing maintenance, along with any vehicles owned by the deceased and his household chattels. A legacy payment was also made, totalling $50,000.

Despite these allowances, the deceased's partner applied to the courts to have her share of the estate increased to provide ongoing financial support.

The Judge agreed, ruling the current allowance contained within the will did not provide adequate provision for the woman's ongoing maintenance.

After finding that the woman was an eligible party under the Succession Act 2006 (NSW), and that the application had been filed in time, the Judge considered how much would be an appropriate amount to award.

Although rejecting the plaintiff's request that the remaining balance of the estate be signed over to her exclusively, the Judge did order that a further $100,000 be added to the deceased's provision.

An amount totaling almost $400,000, was to be held in trust. This trust was then ordered to be used to provide ongoing accommodation for the plaintiff, either in her existing rented housing or to finance the move into a rest home.

This case offers some valuable insights for other people who might be considering an estate dispute. Despite already being the main beneficiary of the deceased's estate, the woman was able to increase her share of the estate in order to provide for her ongoing support.

What's more, the ruling hinged on the fact that the woman wasn't considered an able-bodied adult - meaning that she was unable to maintain her own source of income, owing to her age.

If you are considering undertaking an estate dispute in New South Wales, make sure you discuss this option with a wills and estates lawyer.