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Family Provision Claims – Have you been left out of the Will?

By March 10, 2020November 10th, 2021No Comments

Been left out of the Will of a partner, parent or grandparent? Did your circumstances change from when the Will was made to now?

Historically a parent or partner has a duty to provide for their children or spouse in the event of their death. There are many reasons why that sometimes does not happen. It could be that the deceased and applicant had not spoken for a long time; a falling out that was never resolved. A second marriage where, for tax reasons, entities were created which now disadvantage the children of the first relationship. A separation and a property division that never occurred. Or just not getting around to writing a Will or changing the existing Will.

There are many stories in the press about claims for bejewelled guitars, lavish holidays, weekly manicures and a standard of living that most of us can only dream about from deceased estates. For many amongst us a reasonable standard of living is all we ask for.

A recent case that this firm was involved in concerned a relationship between the deceased and our client (his de facto spouse), that had lasted approximately 10 years. They were living together at the time of death, had made plans for the future and the deceased had purchased a car for our client a few years previous. It was a sudden death and the deceased had not made a Will since just after his previous relationship ended. The Will gave everything to his son, a now 41 year old with considerable assets of his own who was also the executor of the estate.

Our client had given up her rented property to live with the deceased some years previous, had a job that was important, but low paying and had done considerable work around the rural property by way of improvements instead of paying money into her superannuation fund. Our client’s lack of funds was not a problem when the deceased was alive but upon his sudden death were devastating especially when the son decided that his step-mum should move from the property she had lived in for the past 10 years. The deceased and our client had made plans for the future in relation to the property and there were many independent accounts of the deceased expecting that our client would remain on the property after his death.

Negotiations were entered into with the son’s lawyers to try to avoid court proceedings to bring about a just settlement to no avail. The son changed solicitors a few times (usually a sign of not liking the advice provided) and eventually our client was forced to make an application for provision out of the deceased’s estate to the Supreme Court of New South Wales as the son (executor) would not negotiate.

Once an application is filed, it is usual to have one court date and then for a mediation between the parties to be arranged. This mediation usually takes place at the Court and is done with the idea of resolving the matter as soon as possible. We were able to resolve the matter at the mediation and our client walked away with an amount of money that represented the deceased’s obligation to look after her interests, her input into the relationship and the property. The son? He wasn’t happy but I suspect his case was more about hurt feelings and grief. He came away with two properties and enough money to ensure his lifestyle for the years to come.

If you would like to discuss your circumstances with our principal Kym Chapman to see what remedies are available to you, please contact her on 0416102577.

Kym Chapman & Associates provide expert legal advice for Northern NSW and have offices based in Byron Bay and Cabarita