Please note: This is a fictionalised version of a real outcome in the Supreme Court of Victoria.
The purpose of the #contestawillwithrobinsongill series is to educate the public about the risks, opportunities and realities of disputing wills and estates in plain English.
How an Adult Child’s Claim for Further Provision From Her Deceased Father Was Dismissed
In his passing, David’s estate was valued at a nominal $100,000 which was left to his widow, Sharon. His estate was largely made up of cash and a small share portfolio.
David’s daughter, Rebecca was upset when she discovered her father’s estate went entirely to her mother.
With this in mind, Rebecca decided to pursue her mother in court for a share of the estate.
Honouring the needs of David’s widow over his adult daughter
According to the Court, Rebecca ticked a lot of boxes when it came to being eligible for making a claim on David's estate.
The Court found, relevant to family provision claims in Victoria, that David owed Rebecca a moral duty, and that she could prove necessity for provision give her limited financial circumstances.
However, Rebecca’s case was dismissed on the following grounds:
- David’s paramount duty was to his widow (Sharon) and it wouldn’t be appropriate for the Court to alter his testamentary intentions.
- Rebecca had received a property from her father at a price far less than market value years prior, which the Court considered an “early inheritance."
- The Court rejected Rebecca's contention that she contributed to building up David’s estate.
Key Lessons and Takeaways from This Estate Litigation Case
Real-life scenarios like this offer a number of lessons that can be very helpful to understand if you are considering contesting a will.
Our key take-aways from this story are:
- When estate planning, consider that any early inheritance provided to others may be important and as such, consideration may be given by someone who is undertaking estate planning, to an acknowledgement of this in their will.
- Even if you are eligible to contest a will and meet the eligibility criteria – there is a wide range of factors that a Court will consider and legal advice should be sought to understand both the benefits and risks of making a claim.
- Always consider the total estate value when contesting a will. It is likely that even if Rebecca was successful, there wouldn’t have been a lot left in the estate after paying legal fees (two law firms, barrister fees plus court costs).
Conclusion.
If you decide to pursue the avenue of contesting a will, make sure you get advice from an experienced estate disputes lawyer. Meeting the criteria to be eligible under the relevant legislation doesn’t always mean you will be successful, and consideration is always given to the terms of the will and the impact of any claim on the existing beneficiaries.
How can I learn more?
Rachael has helped a number of individuals successfully dispute wills that they have been unfairly left out of or left inadequate provision. She also has experience in defending claims made by individuals against deceased estates.
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