Defending a Family Provision Claim

Earlier this year the Penrith office of Turner Freeman Lawyers acted for their clients in the successful defence of a Family Provision claim which was brought by an adult child in the Supreme Court of New South Wales.

The deceased, Dorothy, as at the date of her death owned a property at Sackville North as joint tenants with her youngest son, Robert. This property was transferred into a joint tenancy 6 years prior to her death due to the significant involvement in the construction of the family home, financial contributions and ongoing maintenance of the property by Robert and his family. Robert had in fact lived in the main house on the property since first paying for the construction of the family home in the early 1980s. By survivorship, the property was transferred into the sole name of Robert upon Dorothy’s death. Dorothy had little other assets, which comprised approximately $40,000.00 in cash.

By her last will, Dorothy confirmed her wish that Robert was to take the property, even though he was to take the property by survivorship as per the law. Dorothy left the remainder of her estate equally to her 4 children (including Robert and the child making the claim).

The plaintiff, Anne, filed a Family Provision claim seeking additional provision from Dorothy’s estate, as well as Dorothy’s “notional estate”.

Notional estate is a concept that allows the Court to “claw back” into an estate an asset which would ordinarily not pass through the estate, in this case a property held in joint tenancy. This is a concept which is unique to the New South Wales jurisdiction, and the Court has a wide discretion in deciding whether to make a notional estate order.

Dorothy’s two other children who were also entitled to receive a quarter of her estate played no part in the litigation brought by Anne.

Following a three-day hearing, the Court ultimately decided that no order for further provision for Anne should be made. Further to that, the Court said that even if it was to make an order giving Anne further provision from Dorothy’s estate, it would not have done so as that would have meant designating the Sackville North property as notional estate and this would have undone Robert’s “reasonable and legitimate expectations based on his financial contributions to its purchase and in building his family residence there.” The Court went on to comment, “Such designation would have resulted in the sale of the Family Property and Robert being displaced from the house that he had built and lived in for over thirty years.”

This case highlights the complexities that can be involved when dealing with issues such as the contesting of a will, as well as estate planning. It is crucial that you receive sound legal advice from lawyers who specialise in Wills & Estates Law.

If you are considering contesting a will, or are looking for advice in relation to estate planning call Turner Freeman lawyers today on 13 43 63. Our expert Wills & Estates lawyers are ready to assist and advise you in any matter, whether the issues are simple or complex. The first consultation is free, and in some cases we act on a No Win, No Fee basis.