Case Overview
- Our client lived with and cared for his wife throughout their marriage including after she became ill and passed away.
- He later learned that his wife had large accounts under the will that’d be provided to their children to the exclusion of our client.
- Through a claim on his wife’s estate, he further received $350,000 on top of the two properties he’d previously held jointly with his wife.
Our client was married to his wife for 40 years, during which time they built a life together and had three children. Our client lived with and cared for his wife throughout their marriage including after she became ill and passed away. Throughout their lifetime the couple purchased and sold various properties and held various bank accounts.
Our client remained in employment throughout the marriage, providing the bulk of financial support. His wife worked intermittently, and her father gifted her and our client a property which was later sold and the funds used to purchase the family home. Upon her death, our client received the two properties held jointly with his wife. Under his wife’s Will, all assets which were not held jointly were to go to their three children.
“Upon his wife’s passing our client learned that his wife had been holding large accounts solely in her name which under the will would be provided to their children to the exclusion of our client.”
Richele Nelsens
Our Approach
After learning that he had not been adequately provided for under his wife’s Will, our client contacted Gerard Malouf and Partners to ascertain his rights in contesting a Will. Our experienced and caring Will Dispute Lawyer, Richele Nelsen, guided our client through the legal process whilst remaining sensitive that our client was grieving the loss of his wife.
With an excellent understanding of the Court’s consideration of Family Provision Applications, Richele ensured that evidence pertaining to our client’s strained financial circumstances was provided to the estate in support of his claim. Our client was reliant on a pension and lacked sufficient savings to meet daily living expenses and to plan for the contingencies of life.
Understanding the complex familial relationships intertwined in the claim, Richele was careful to place our client and his relationship with his children at the forefront of any settlement discussions, whilst ensuring she maximised his provision under the Will. Confident in our client’s need to have been further provided for under the Will, we entered into negotiations with the estate to see if the matter could be resolved without lengthy and expensive Court proceedings being commenced.
Our client was very happy with this resolution which allowed him to continue in his retirement, confident in the fact that he was financially secure. If you believe that you have not been properly provided for from a loved one’s estate, please do not hesitate to contact our office to have a FREE consultation with one of our experienced lawyers.
The Result
During negotiations, we were able to resolve the matter on the basis that our client receive a further $350,000 from the estate on top of the two properties he’d previously held jointly with his wife.
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.
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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.
