Please select your state

We will show you information specific to your state.

Home | Blog | Family Provision in Action

Two recent claims for family provision which were the subject of a hearing in the Supreme Court of New South Wales (Re Filomena Rodi, deceased [2016] NSWSC 1696) before Justice Lindsay serve to highlight a couple of important things. Firstly, one of the claims shows the Courts dislike people who contest a will when driven by resentment and a feeling of unjustness, while the second of the claims provides arguably, a good example of why the ability to contest a will exists.

The deceased died aged 95 years and left four children surviving her. The deceased made a will which left her estate to her four children equally.

The first claim – “the daughter”

The deceased’s daughter made the first claim, being one of the four children entitled to share equally in her mother’s estate. Despite this daughter having combined net assets with her husband totalling significantly more than two million dollars, the daughter sought half of her late mother’s estate. The Court said the following in relation to the daughter’s motivation for making her claim:

…the first plaintiff’s motivation for bringing a claim for family provision relief is grounded in a deep resentment that the deceased, by her 2008 will, revoked an earlier will (dated 27 September 1991) which, had it become operative, would have left the deceased’s estate to her daughters (the first plaintiff and Kathy) alone, to the exclusion of her sons, their brothers.

The Court dismissed the daughter’s claim. Justice Lindsay said that adequate provision was made for the daughter in the last will of the deceased (under which she was entitled to around $400,000), and her claim seeking half of her late mother’s estate could not be justified based on her evidence.

This particular claim emphasises that contesting a will and seeking family provision should only be done if adequate provision has not been made for you under a deceased’s will. Of course, what can be considered ‘adequate’ is different in every situation, and that is where speaking to one of Turner Freeman’s expert Wills and Estates lawyers will assist you in determining whether a family provision claim can and should be made.

The second claim – “the grandson”

A grandson of the deceased made the second claim. He lived with the deceased for 10 years prior to her death. He resided rent-free with the deceased during that period, but allowed her to remain living in her own home by assisting her with her daily needs, providing companionship, and protection to his grandmother.

As a grandson of the deceased, he was not automatically eligible to make a claim upon the deceased’s estate, however in considering the circumstances, and because the grandson was dependent on the deceased and shared a close personal relationship with his grandmother, the Court was satisfied he was eligible to make a claim.

The grandson received no benefit under the deceased’s last will. At the time of the hearing the grandson was a single parent of an infant child and had only modest net assets

The Court decided that the grandson should receive a significant legacy of $200,000, which would assist him in caring for his young child and beginning a new life outside of the deceased’s property.

The claim displays what is arguably one of the main reasons that family provision legislation exists, being to remedy a situation where a person who ought have been provided for has been left without adequate provision for his proper maintenance from a deceased person’s estate.

If you have been left out of a will, or believe you have been left without adequate provision, contact Turner Freeman today on 13 43 63. Speak to one of our specialists Wills and Estates lawyers about your claim and the initial advice given is on a no obligation basis.

Contact Us

Latest News and Blog

Superannuation – can it be touched?

Super is an asset and forms part of the asset pool in property settlements.Read More

Domestic Violence Leave

What is domestic violence leave and how to access it.Read More