Case Overview
- Our client’s father passed away in late 2021, leaving his property to our client.
- After learning that his stepmother was contesting the will, our client contacted Gerard Malouf & Partners to enquire about defending a family provision claim.
- At mediation, we were able to negotiate and resolve the matter for our client’s stepmother to receive only 35% of the estate, and for our client to preserve 65%.
Our client maintained an exceptionally close relationship with his father throughout his lifetime. Despite our client’s father remarrying when he was a young adult, they kept in regular contact up until his passing.
His late father’s estate was valued at approximately $2,000,000 and consisted mainly of property, money in bank accounts and personal items left to our client.
In his father’s will, he gave our client’s stepmother and his widow a lifetime right to reside in his property, but left the property to our client after she passed away. The deceased’s widow, our client’s stepmother, made a family provision claim on her late husband’s estate on the basis that he had not provided adequate provision for her.
“We acted in our client’s best interests to protect his rights in his late father’s estate.”
Richele Nelson
Our Approach
Our client elected to seek independent legal advice from Gerard Malouf & Partners rather than being represented by the state’s solicitors. We acted in our client’s best interests to protect his rights in his late father’s estate.
With no assets or savings due to recent flooding events, and with our client suffering from several serious health concerns, we expressed our client’s dire circumstances to the court when responding to his stepmother’s claim, to ensure his competing needs were considered.
Shortly after commencing court proceedings, we requested the parties participate in a mediation. Here, the parties were able to negotiate and resolve the matter on the basis that our client’s stepmother move out of the property immediately and receive only 35% of the estate, and that our client preserved 65% of the estate.
Our client was extremely happy with this result as it provided him with financial security into his future.
If you need assistance in bringing or defending a family provision claim, reach out to Gerard Malouf & Partners today.
The Result
Our client preserved 65% of the estate which provided him with future financial security.
Frequently Asked Qeustions
More Information
The first step in disputing a will should be a consultation with solicitors from a law firm that includes family provision claims among its areas of expertise. This conversation will involve a frank analysis of your dispute and its chance of success.
If seasoned lawyers consider your matter valid, then you can declare your intent to claim. This should take place not long after the death or grant of probate (New South Wales permits filings up to 12 months post-death, but the limit is 6 months in). You must clearly argue that you have a pertinent connection to the decedent entitling you to compensation you didn’t initially receive, and explain the “moral obligation” to you this individual should have met.
Successful arguments of these facts will earn you a day in court. Depending on the situation, you may be more likely to resolve this in mediation than before a magistrate; it all depends on how strongly the defendants oppose your claim. You can receive financial compensation in either context if your case is resolved in your favour.
Do you need a lawyer to dispute a will?
You are entitled to represent yourself (and yourself alone) in all Australian legal matters, criminal or civil. But you cannot represent anyone else; e.g., without a lawyer, you wouldn’t be able to mount a challenge alongside others if all of you were disenfranchised by one particular beneficiary.
Moreover, unless you have significant experience in family law, doing so is a huge mistake. Contesting a will is an extremely complex undertaking, involving intense emotions and high tension, and while an experienced lawyer can manage these matters effectively and objectively, you almost certainly cannot.
Will Dispute Lawyers will also be invaluable in cases challenging the actions of an executor, which can go as high as the Supreme Court.
How the process of making a claim on an estate works?
In NSW, if you are an eligible person and you wish to contest a will, you must do so within 12 months from the date of the testator’s death. In some cases, the court may make an exception if you were unaware of the death of the testator for longer than 12 months.
As an eligible person, you will likely be making a family provision claim. The court will consider many factors when judging whether or not you are eligible to receive an inheritance due to a contested will.
