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.
When a parent leaves nearly all of their estate to one of their children (with a nominal portion to be divided between his other children), do the siblings have a case to successfully contest the will?
When John passed away, his estate was worth $5 million. All of his assets, largely made up of a property and a share portfolio, were held in Victoria.
Jessica, the eldest of John’s four children, was the closest child to her father. John had a rocky relationship with his second son, Steve. His other two children, Michael and Kate he rarely saw, but both suffered from disabilities.
In his will, John left a whopping 89.5% to his eldest child Jessica, or an equivalent of around $4,475,000.
For Steve, he left $10,000 or 0.2% of his estate. Michael and Kate were to each receive the remainder of the estate, with an entitlement of about $257,500 each.
Establishing a Case for Adult Children Largely Left Out of an Estate
It’s no surprise that the younger siblings were unhappy about this situation and believed they were entitled to a more significant proportion of their father’s estate.
Upon obtaining a copy of their father’s Will from Jessica (who was the named executor), the three siblings sought legal advice. After a thorough discussion with their lawyer on the situation, they were educated on the eligibility requirements and prospects of making a claim. They then decided to initiate proceedings in a Victorian Court.
. . . and Winning It.
The Court’s final decision was made on the following grounds, amongst other factors:
- Kate was the only child who had children who were the biological grandchildren of John.
- Kate, Michael, and Steve were all able to demonstrate “financial need” to varying degrees.
- Kate and Michael both suffered from disabilities and had a high degree of need.
| Original Entitlement | Revised Entitlement | Change | |
|---|---|---|---|
| Kate | $257,500 | $750,000 | Additional $492,500 (Almost 3x original) |
| Michael | $257,500 | $500,000 | Additional $242,500 (Almost 2x original) |
| Steve | $10,000 | $225,000 | Additional $215,000 (Over 22x original) |
| Jessica | $4,475,000 | $3,525,000* | Loss of $950,000* (Over 21% decrease) |
By seeking legal advice and have the matter determined by the Court, Kate Michael and Steve were able to secure an additional $950,000 between them from the estate.
Note: Generally, if successful in a claim against an estate, the estate will pay the parties’ legal fees (or a portion thereof).
Key Lessons and Takeaways from This Estate Litigation Case
There are many key learnings to take away from this dispute, some of which are as follows:
- If a claimant successfully contests a will, it can have significant financial consequences for an estate. As Jessica found, being appointed as an executor can be a big responsibility and shouldn’t be taken on lightly. If you find yourself the executor of estate which is disputed, an experienced estate litigation lawyers can help you in defending such claims.
- If you receive no entitlement from an estate, or perhaps “less than expected”, seeking legal advice early is a worthwhile exercise. In Victoria, a claim against an estate seeking further provision must be made within 6 months of probate or letters of administration being granted. This limitation period may only be extended by the Court in limited circumstances.
Conclusion.
The consequences of not appropriately planning and structuring your estate may impact your intended beneficiaries financially. Although you cannot prevent an eligible person from making a claim on an estate, speaking with an experienced estate planning solicitor can appraise you of the risk of claims and your estate planning options.
By seeking legal advice early, Kate, Michael and Steve were able to better understand their position and formulate a successful claim against the estate. Strict time limits apply to make such claims, so seek advice early if you are considering challenging a will.
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.
Some other resources you
might find helpful
Gifts in a Will Greater than the Estate
What happens when a parent’s Will leaves behind more than they own, to multiple beneficiaries?
Adult Daughter Excluded From Late Father’s Will
When a parent’s will only appoints some of their children as executors and beneficiaries of their estate, and excludes an estranged child, does the estranged party have a case to successfully contest the will?
The New Federal Circuit and Family Court of Australia
The Family Court of Australia and Federal Circuit Court of Australia recently merged and, as of 1 September 2021, the new Federal Circuit and Family Court of Australia (“the Court”) will deal with all family law matters.