Case Overview
Our client commenced a relationship with the deceased about 6 years before her passing. Approximately two years into their relationship, our client moved into the home of the deceased and assisted her with domestic duties, paying her bills and rent.
On multiple occasions during their relationship, the deceased made promises to our client that he would be well looked after in her passing, promising to leave him 40% of her estate. Our client relied on these statements and continued to contribute financially, and with his care and assistance.
Upon his partner’s passing in early 2020, our client discovered that he in fact had not been provided for under the deceased’s Will as promised.
Our Approach
It was at this time that our client contacted Gerard Malouf and Partners, experienced Will Dispute Lawyers for advice on his entitlement to make a claim on the estate. Our zealous and experienced Will Dispute Lawyer, Richele Nelsen determined that there were two avenues available for bringing a claim on behalf of our client: a Family Provision Claim and a Promissory Estoppel Claim. To ensure that the injustice our client had suffered would be corrected, we pursued both avenues vehemently.
Our Will Dispute Solicitor’s obtained thorough and detailed evidence from our client and witnesses to support both claims. In support of the Promissory Estoppel Claim, it was necessary to provide evidence of the promises made by the deceased to our client. It was also important to establish that our client had acted upon the promise and suffered a detriment as the promise had not been fulfilled. This was demonstrated through his continued financial and domestic contributions to the deceased over several years.
In support of the Family Provision Claim, we drafted an affidavit setting out our client’s relationship with the deceased, his contributions to her estate, and his current difficult financial circumstances.
Confident in our client’s claims and our ability to aggressively pursue both avenues on his behalf, court proceedings had commenced. Shortly after, we put forward an offer of settlement to the estate and negotiated a position our client believed fairly compensated him for the contribution he had made to the estate. Our client was extremely content in the fact that his hard work and financial contribution had been recompensed and the quick settlement gave him the closure and the financial freedom to plan for his future.
The Result
We put forward an offer of settlement to the estate and negotiated a position our client believed fairly compensated him for the contribution he had made to the estate. Our client was extremely content in the fact that his hard work and financial contribution had been recompensed.
Frequently Asked Qeustions
More Information
What is a Family Provision Claim?
A Family Provision Claim is a certain kind of way to dispute a Will in court. You are eligible to submit a Family Provision Claim if you are related to the deceased and have a demonstrated financial need that the deceased had a moral obligation to meet. As the specifics of these cases can vary widely, the best way to know if you may be eligible is to consult with an established lawyer who specialises in disputing Wills.
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What is a Promissory Estoppel Claim?
The principle that applies in this situation is one of Promissory Estoppel which is a legal term which means that when somebody makes a promise to you and you act to your detriment they are legally prohibited in reverting or reneging on the promise.
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.
