A man has filed a family provision claim against the estate of his deceased mother in a bid to prevent his twin brother from receiving a share of the family home.
The plaintiff, who was also executor of the estate, had been living in a Rockdale property with his mother from approximately 1990 until her death in 2015.
In her will, the twins’ mother gave the plaintiff a $20,000 legacy and split the value of the $1.1million house equally between her two sons.
The parties’ father, who also died in 2015, left the entirety of his estate to the plaintiff, leaving nothing to his other son. The plaintiff’s brother does not appear to have contested the will of his father, despite receiving no provisions from the estate.
Contesting the will
The plaintiff pursued a family provision claim in order to receive the Rockdale property outright. In exchange, he was willing to offer his brother the remainder of their father’s estate – the equivalent of roughly $360,000.
This was less than the value of the brother’s share of the property, which was worth between $528,000 and $580,000, depending on whether litigation costs were taken from the estate.
According to the plaintiff, the relationship between his brother and their parents was strained, and the deceased had written in previous wills that the defendant should receive no provisions from her estate.
The plaintiff, meanwhile, acted as the primary carer for his mother and maintained a good relationship with her and his father until their deaths.
NSW Supreme Court Justice Philip Hallen remarked that this was an unusual case in that the plaintiff had received significant provisions from both his parents’ wills, but still wished to contest his brother’s share of the estate.
The judge’s determination
Ultimately, Justice Hallen rejected the plaintiff’s family provision claim. He noted that while the defendant’s relationship with his mother was poor and neither had sought to rectify it, the deceased had still included both sons in her will.
Furthermore, the plaintiff had lived in the Rockdale property for many years rent-free – both before and after his mother’s death – and his financial situation was stable, particularly as he received his father’s entire estate.
An upcoming motor accident compensation claim may also improve the plaintiff’s finances even further in the future. The defendant, who decided not to file a counter claim, would therefore maintain his share of the Rockdale property.
This case highlights the importance of seeking advice from no-win, no-fee lawyers who have the experience to evaluate how likely your case is to succeed, as well as only receiving payment when a settlement is achieved.