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Plaintiffs must prove need if challenging estate provisions

Succession Law News | April 2015

Where a spouse gets too greedy and claims for a greater share of a deceased spouse's estate the test is 'adequate' provision, not 'generous' provision in the Will. Forum Law has successfully defended the wishes of the deceased in his Will against a claim by the deceased's de-facto for more than was provided by the deceased.

In February 2015 we wrote about a grandson seeking a greater share of his deceased grandfather's estate. In a recent decision from the Supreme Court, Forum Law has been successful in defending the express wishes contained in the will of a Testator from a claim made by the deceased's de-facto partner under the Succession Act (NSW) 2006 ("the Act"). This case involved upholding the Testator's intentions as detailed in his will and defending an application made by the deceased's de-facto partner for a greater share than that provided for in the will ("the Plaintiff").

In his will, the Testator made provision for his daughter to receive a 2/3 share of his estate and the Plaintiff to receive a 1/3 share of his estate. The Plaintiff made an application to the court on the basis that she was an eligible person under Section 57 of the Act. The Plaintiff's application to the Supreme Court claimed that the distribution of the Testator's estate under his will was unfair and did not adequately provide for her ongoing maintenance, education or advancement in life. 

The court referred to the High Court's decisions in Singer v Berghouse (1994) 181 CLR 201 and Vigolo v Bostin (2005) 221 CLR 191, which set out a two-stage test that courts should undertake when hearing a family provision claim:

  1. Determining whether adequate provision for the proper maintenance, support, education and advancement in life has been made to the Plaintiff. 
  2. The court engages in a discretionary exercise to determine what provision, if any, ought to have been made. The court also determines whether the Testator failed in his moral duty to the Plaintiff.

The court considered the extent of the provision made to the Plaintiff, as well as her own assets, income and resources and found that these were more than sufficient to maintain her throughout the remainder of her life. The Plaintiff's claim for provision from the Testator's estate was unsuccessful as she was unable to prove to the court that she had a need for this provision.

The court indicated that the Testator was perfectly within his rights to distribute his estate as he saw fit, with proper consideration being given to providing for his daughter and to the Plaintiff. The court made particular note of the fact that provision made by a Testator in their will to an eligible person under the Act ought to be 'adequate', not generous.

As a result of the court's decision, the Testator's estate will be distributed as instructed in his will and the Plaintiff has been ordered to pay the estate's substantial costs out of the 1/3 share of the estate left to her under the Will. 

Careful estate planning and effective communication can often assist with trouble-free succession of family assets.  Forum Law Solicitors in Leichhardt in Sydney's inner west can provide advice on estate matters, including wills, powers of attorney, appointment of guardian and family provision claims, where you wish to either raise or defend a claim.  We can also advise you on the possibility of a claim being raised in respect of your Will, and advise you on how to minimise the success of any claim to dispute the terms of your Will.
We have clients from many locations within Australia and outside Australia. Call Annette or Jackson on +61 2 9560 3388 to discuss your concerns.

Forum Law is an active member of several reputable law and industry associations. We have recently obtained ISO9001 accreditation.