Family provision claims are an essential tool to ensure that a deceased’s estate properly looks after your interests following a loved ones passing. Whether you are a spouse, ex-spouse, or, as in the case below, an adult child, you may be able to lodge a claim. To be sure your application is in the best state it could be, it is important to talk to a lawyer experienced in making family provision claims.
A recent case in front of the Supreme Court of New South Wales highlights some of the obstacles claimants must overcome, as well as why it is important to have proper representation.
After the passing of the deceased, Carmela Raineri, in 2015, two of her three children lodged an application for family provision relief. The estate was valued at over $1.8 million, with the majority of this coming from the sale of the deceased’s house in Moala Street, Concord West.
The deceased’s will divides the estate between her plaintiffs (20 per cent each) and the defendant who is allocated 60 per cent. The plaintiffs claim that the deceased had intended that all three children receive a third of the estate, each representing the branches of the family.
One of the reasons for this is that both plaintiffs are relativity well off financially. The defendant on the other hand has not worked since he was injured in a work related accident, and following his divorce from his wife, he has been living off disability benefits.
The defendant argues that the close relationship he had with his mother is an important factor to take into account also, with each of the deceased’s previous wills naming the defendant as executor.
Due to the plaintiffs’ relative material affluence, the judge did not find that either plaintiff was left without adequate provision as set out by the Succession Act 2006. The judge pointed to the fact that each plaintiff had their own home and a significant investment.
The takeaway from this case is that a will-maker is well within their legal right to distribute their estate in the way they see fit even if it is not of equal distribution or what is outlined in the will. However, a claimant will need to prove that this distribution is not adequate assistance.
If you would like to know more about family provision claims and what factors judges consider, talk to the experts at Gerard Malouf and Partners.