A NSW man recently filed a claim pursuant to s 59 of the Succession Act 2006 for provision out of the estate of his late father, as the only child of the deceased and the deceased’s first wife.
The defendant was the decedent’s widow and second wife – and the sole executrix and beneficiary under his last will. There was no dispute that the plaintiff is an eligible person under the Succession Act, but some questions exist as to whether the plaintiff was left without adequate provision.
The deceased had previously settled on the first wife a half-share of two properties he owned (including the family home), and payment of financial support as part of a Financial Agreement, with interests in two properties to turn to the plaintiff in the event of his mother’s passing (who was the sole heir named in her will).
The plaintiff worked with his father, the deceased, in a service station under the understanding it would pass to him. He also lived with his wife intermittently in the decedent’s house to save money. However, the Service Station was eventually closed with the understanding that the plaintiff had opted to set up his own mechanical workshop business.
The plaintiff and the deceased later became estranged during a dispute between the latter and his first wife, the plaintiff’s mother, and the two did not ever speak again as “father and son.” An argument about the plaintiffs’ work at the Service Station then ensued, and a Fair Work claim was filed.
The soon to be second wife took care of the deceased through his final battle with cancer. They were married, and the decedent created a new will naming her his sole beneficiary that same day. The court set aside the Financial Agreement with the first wife, and the plaintiff sued the deceased over wages he claimed were withheld during his time working at the service station.
The deceased passed shortly thereafter. The plaintiff’s Fair Work claim was subsequently undefended and he was awarded $18,902.66. However, he also filed to dispute the will, which left his mother a large proportion of the property and assets of the deceased’s estate – including the family home, interest in three other properties, a boat, a superannuation account and “other cash and chattels.” The plaintiff was specifically excluded.
It was determined by the court that the net value of the assets of the estate available for distribution were estimated to be $643,684.24. The plaintiff sought a provision of $250,000. However, he was deemed to be in good financial standing, whereas the deceased’s second wife’s condition was considered parlous. Ultimately, nothing was awarded, and the plaintiff was ordered to pay his own court costs.
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