NSW woman disputes will, declaring unjust preferential treatment in favor of her brother

Date: Jan 30, 2020

A NSW woman sought provision out of the estate of her late father after receiving only a legacy of $10,000 – which was unpaid, while the bulk of the estate, consisting of property, went to her brother, the executor of the will. The plaintiff claimed a pattern of unjust preference between herself and her brother by the deceased, lasting her entire life, leading to her being left without sufficient provision.

The case

At the time he made his will, the deceased’s major asset was the family home, which he had made joint property with his son (the defendant) as a gift after the death of the deceased’s wife. After his passing, both shares went to the defendant, leaving only $5,000 in the estate that was spent on funeral costs, the rest of which were paid by the defendant. This left no money to pay the $10,000 legacy.

The defendant suffered a brain haemorrhage after proceedings had begun, so his son was appointed to act as his tutor to represent the estate’s interests. The plaintiff, a 70-year-old widow, asked that half of her father’s estate be declared notional estate and another half share of the property (worth between $900,000 and $950,000) awarded to her as an eligible person (of which there was no dispute).

In her affidavit evidence, the plaintiff made allegations against the deceased of bad treatment when she was a girl, including being cut off from the family after her marriage (of which he disapproved). Furthermore, she alleged that her father did not wish her in his house, beat her and made her work to pay for her food. No material or emotional support was given, and her children were never acknowledged, according to her complaint.

The judgment

Not all of the plaintiff’s complaints were accepted by the court. However, it was established that the plaintiff had not been left with provision. The half estate was declared notional, but half its value was not awarded. Neither was the $10,000 legacy.

Rather, the court found that an appropriate legacy would have been $100,000 and ordered that amount be awarded to the plaintiff along with costs. This judgment, while certainly not in the amount hoped for, might be seen as a “win” for the plaintiff, but the scattered testimony and disorganised proceedings may have diminished her case.

If you need help disputing a will, contact Gerard Malouf & Partners’ Compensation, Medical Negligence & Will Dispute Lawyers.

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