Daughter and wife challenge estate left entirely to youngest child

Date: Feb 24, 2020

A recent case involving the dispute over a family will in New South Wales exemplifies how complicated these matters can become.

The Case

This dispute, settled in the Supreme Court of New South Wales in December 2019, involved two plaintiffs: the second adult daughter (Plaintiff 1) and the third wife (Plaintiff 2) of the deceased. The defendant was the third and youngest child of the deceased (from the second wife) to whom the deceased left all of his assets. Both plaintiffs submitted claims for provisions out of the deceased’s estate brought under s59 of the Successions Act 2006 (NSW).

The Claim

By the time of the hearing, the sole asset of significant value was the deceased’s property valued at $1,250,000, which the defendant claimed she was living in with her children. However, just days before the judgement was due for delivery, the two plaintiffs discovered that the defendant had sold the property and relocated to Queensland. The judge claimed the sale had two consequences on the proceedings:

  • At the hearing, the defendant made passionate submissions that the plaintiffs’ claims should fail because the property should not be sold for the sake of her children’s well-being, stability and schooling. The Court had no evidence as to what caused the defendant to sell the property and re-locate.
  • The value of the property, and therefore the estate, had been crystalised due to the sale.

After some disbursements, the net proceeds of the property amounted to $1,423,179.72. Upon deducting the balance of legal costs from the three parties, it was calculated that the net distributable value of the estate was $1,077,500.

The Judgement

There was no dispute that the defendant was entitled to the majority of the estate. However, the Court accepted that the nature of the plaintiffs’ claims – when considered alongside the size of the estate – warranted some provision being made for them. In Plaintiff 2’s case, the Court also accepted there were additional factors warranting her application: being left with less than she would have likely received in a family law settlement and the deceased’s assurance of a legacy for her in his will.

However, the size of the estate and the defendant’s greater moral claim also meant that the plaintiffs were not entitled to the full provisions they sought. In the end, the Court determined Plaintiff 1 would receive $200,000 to eliminate her mortgage and Plaintiff 2 would receive $150,000 for the same purpose (and to provide a small buffer for contingencies).

If you feel you need to dispute a will, your first step is to speak with an experienced probate lawyer from the team at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.