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Home | Blog | Successful claim for family provision by son

Turner Freeman Lawyers recently acted for a son in a successful claim for Family Provision in circumstances where the deceased had made a will leaving his entire estate to the Museum of Freemasonry, a registered charity, to the exclusion of his only living son.

Judgment in favour of the son, Mr Portis was handed down by Justice Kunc of the Supreme Court of New South Wales in early November 2017, following a hearing in June 2017.

The full judgment is publicly available and can be read online (Portis v Green [2017] NSWSC 1489), however the facts and circumstances of the case can be briefly summarised as follows.

The deceased had made a will in 2013, which left the whole of his estate (approximately $550,000) to the Museum of Freemasonry, a charitable organisation. The deceased had also prepared a statement of his reasons for excluding his only surviving son (another son having died a number of years prior).

This statement, which appears in the full judgment, contained a number of points, including that the deceased had not “formed a bond” with his daughter-in-law (Mr Portis’ estranged wife at the time of the hearing), and that Mr Portis had only visited the deceased on 5 occasions. The deceased continued by acknowledging that he had made a prior will leaving his whole estate to Mr Portis, however became aggrieved after he believed Mr Portis to have conspired against him when there was a dispute involving his other son’s estate. Finally, the deceased also stated that “I am not blameless in not having the emotional attachment I suppose I should have with my family but I can only put that down to my early life“.

The executors of the deceased’s estate believed that the reasons outlined in the statement constituted an estrangement between the deceased and Mr Portis and therefore Mr Portis should receive no provision, or only a small amount of provision from his father’s estate.

In a number of recent cases heard by the Supreme Court, estrangement between a deceased person and a child “contesting” their will has been considered to be disentitling conduct meaning that the child’s conduct and attitude toward their parent had been so unpleasant that it defeated any claim they may have had against the estate of their deceased parent. Most often this is in circumstances where the estrangement has been the fault of the child, and not instigated by the parent.

In Mr Portis’ case, the Judge said that the reasons outlined in the deceased’s statement did not warrant excluding Mr Portis from his will entirely and that the relationship between the deceased and Mr Portis was as much down to the deceased’s personality as anything, and the attempts at contact which were made by Mr Portis were reasonable in the circumstances.

In the end, after balancing the financial needs of Mr Portis, and the deceased’s close relationship with the Museum of Freemasonry, the Judge awarded Mr Portis 60% of the distributable estate.

We can help

If you or anyone you know is considering making a family provision claim, we would encourage you to give Turner Freeman a call today, so that you can be put in touch with one of our expert Wills & Estates lawyers.

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