If you believe that you have been treated unfairly in a Will, then you need to take action. Eligible persons, such as children, partners and dependents, are able to appeal to the Court if they believe they have been unfairly treated in a Will. In New South Wales such claims are referred to as “family provision claims” and need to be made no later than 12 months after the death of the deceased, unless sufficient cause can be shown for the delay.
A recent case in the New South Wales Supreme Court, demonstrates a successful family provision claim in “Bindoff v The Trust Company (Australia) Ltd”; Estate of the late Everitt Joseph Griffiths  NSWSC 1100.
Joseph Everitt died in 2014 leaving behind an Estate valued at over $8 million dollars. Joseph left behind two adopted daughters, Susan and Helen. Susan was married with three children, Jasmin, Alexander and Thomas. Helen was married with no children. In his last Will Joseph left a property valued at $950,000 to Susan and shares valued at approximately $160,000 to Helen with the remainder of his Estate passing to his three grandchildren.
Helen made a family provision claim on the basis that Joseph had not made adequate provision for her proper maintenance, education or advancement in life and claimed that her share under the Will should have been approximately $2.68 million.
Firstly, the Court agreed that Helen was an eligible person, as a daughter of the deceased, to make a family provision claim.
Secondly, the Court considered the relationship between Helen and her father finding that Helen lived away from her father most of her life and had a difficult relationship with him. However, the Court agreed that Helen and her father remained in regular contact by written correspondence and telephone despite the physical distance between them.
Thirdly, the Court considered whether Helen had a need for a greater provision from her father’s Estate than the $160,000 she had received. After reviewing the evidence provided by Helen to the Court it was found that she had not received adequate provision from her father’s Estate.
The Court found that adequate provision for Helen would be a motor vehicle (valued at $60,000), health insurance (valued at $200,000), relocation to Sydney (valued at $500,000) and superannuation (valued at $600,000).
Accordingly, the Court ordered that Helen receive the sum of $1.36 million from her father’s Estate in addition to the $160,000 she had already received.
Graeme Heckenberg is an expert Wills & Estates lawyer and will be able to guide and advise you on Will disputes. If you are living on the Northern Beaches and surrounding Peninsula and need expert advice close to home call The Northern Beaches Lawyer today for an appointment on: 9221 0341.
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