Article by Manny Wood published in the Coffs Coast News Of The Area on 4 April 2025.
Betty makes a will, leaving her whole estate to her daughter. She decides not to include her son, Barry.
When Betty passes-away, her estate is valued at around $400,000, consisting primarily of her principal place of residence, in which her daughter resides.
Barry makes a “family provision” claim.
Barry alleges that during his childhood, he was the victim of domestic violence. He says that as a result, he performed poorly at school and left before completing his school certificate.
Barry says that he had a good relationship with his mother and that later in life, she enjoyed the times that he would visit her with his children.
The Court hears that Barry’s legal costs, up to the conclusion of a three day hearing, were $150,000 on a “no win, no fee” basis and that the estate had incurred $140,000 in legal costs. The Court observes that the legal costs are “very high” and “unjustified”.
The Court finds Barry to be an “unreliable witness” and does not accept that his recollection of events and conversations were “accurate or reliable”.
Nonetheless, the Court accepts that Barry, as a child of the deceased, is eligible to make a claim and that he is entitled to “proper and adequate” provision from his late mother’s estate, as perceived by the “prevailing community standards of what is right and appropriate”.
The Court accepts that the alleged domestic violence is relevant in assessing the deceased’s moral duty to Barry. The Court also accepts that as a disability pensioner with no substantial assets, Barry had demonstrated that he has financial needs, claiming $150,000 to assist with accommodation, transport and medical expenses.
However, evidence is adduced, to the effect that Barry was estranged from the deceased for more than 10 years prior to the making of her last will.
In dismissing Barry’s claim, the Court rules that in light of the deceased’s wish that her daughter reside in her home and the lack of other assets in the estate, her “testamentary intentions” should not be disturbed.
Email Manny Wood, Principal Solicitor and Accredited Specialist in Wills and Estates at TB Law at manny@tblaw.net.au or call him on (02) 66 487 487.
This fictional column is not legal advice.
