Partner and Son of Deceased New South Wales Woman Square Off Over Estate Occupancy

Date: Dec 31, 2019

The son of a New South Wales woman who passed away in 2011 is finally achieving his goal of forcing her partner out of her estate. The woman left behind a Will naming both partner and son as executors, but the partner remained living in the Nelson Bay Property that made up the bulk of the estate and refused to sell the property, although multiple steps were taken to arrange said sale.

The dispute

The son filed a Summons demanding the partner vacate the Property and allow it to be sold, while the partner filed a Cross Summons under the Successions Act 2006, repudiating the first. From there years of arguing followed over who owed who what amount to buy the other one out, with multiple sales arranged and contracts signed only to be circumvented by the partner in residence on the Property.

The original plaintiff eventually filed an amended Summons, requesting the defendant be removed as an executor of the estate, and immediately vacate the property, as well as being forced to pay occupancy fees for the same. The defendant insisted that the Property should belong primarily to himself, having claimed he paid for its upkeep and outstanding mortgage.

The plaintiff insisted that the value of unpaid rents over the course of the intervening six years meant that the defendant was the one better off in the amount of $118,000, and that he, the plaintiff, should have no further impediment in selling the Property and being able to split the proceeds. The Nelson Bay Property was accepted as having increased substantially in value in the interim, though not by any means to be attributed to the defendant.

Also bearing on the case were the fact that the defendant had married and brought his new wife and her two children to live on the Property, refusing to consider any sale or buy out by the deceased’s two surviving children, (one of whom was the plaintiff.) The defendant had not even informed the plaintiff of the new living arrangements in the property until shortly before the most recent hearing. This despite the fact that the deceased had clearly laid out in her Will that the defendant should receive 1/2 the value of her estate, and her two sons each 1/4 respectively.

The outcome

The Court found that the plaintiff was justified in their demand that the Property be disposed of and the proceeds apportioned as laid out in his late mother’s Will, and so ordered that the Cross Summons be dismissed and the Exhibits (including the Property) be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW).

If you seek help in contesting a Will, don’t hesitate to get in contact with Gerard Malouf and Partners Compensation, Medical Negligence & Will Dispute Lawyers. Our team can help you with inheritance disputes and applications, so reach out today.

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