Disputing a Will

Everyday the Supreme Court of New South Wales deals with disputes about the distribution of an Estate.

On 13 July 2015 the New South Wales Court of Appeal handed down a decision relating to a claim under the Succession Act 2006.  It was an Appeal from a decision of a Supreme Court Judge who had previously heard the case.

The case involved a dispute about the distribution Estate of a women who died at the age of 93 leaving three adult children.  She had left a Will appointing one of her adult children as the Executor of her Will.  In the Will she had left a legacy of $100,000.00 to her Grandson who was the soul surviving son of her son, Terry and then left the balance to be divided between her other two children.  She made no provision for Terry in the Will.  Terry had no contact with his mother for twenty years before her death.  The deceased had left a letter explaining that she had made no provision for her son Terry on the basis through his own choosing, he was no longer part of her life and had become totally estranged from the entire family which had caused significant pain and upset.

Terry disputed the Will and sought an Order under the Succession Act for a distribution from his mother's Estate.  Terry was able to demonstrate that he had a financial need.  He had been made bankrupt and had been discharged from that bankruptcy soon after filing the Application in the Supreme Court.

The Judge who heard the case at first instance determined that his mother was entitled to regard Terry as a person who did not deserve any benefit from her Estate, whatever his financial circumstances and dismissed Terry's Application and ordered Terry to pay the legal costs.

Terry appealed against that Decision and the New South Wales Court of Appeal handed down its Decision on 13 July 2015 in relation to that appeal.

The Court of Appeal was satisfied that the Judge had made no error in dismissing Terry's Application and held that there was no rule or principal that in cases where a person can show a significant need, as was the circumstances of Terry in this case, there was no obligation to make a provision out of an Estate for an adult child whether or not there has been any estrangement except where there are circumstances of hostility or callousness on the part of the deceased.  The estrangement of an adult child from a family is a factor that can be taken into account.

In those circumstances Terry's Appeal was dismissed and he was again ordered to pay the legal costs of the Appeal in addition to the costs of the initial proceedings in the Supreme Court. 

The problem with that Order was the Estate would have had to pay its own legal fees in defending the claim by Terry.  On the face of the facts disclosed in the Judgement it appears that Terry is a discharged bankrupt and unlikely to have any assets out of which the costs order could be paid.  It is likely that the Estate would have incurred considerable legal costs in defending the claims and appears unlikely to recover any of those costs from Terry.  The deceased would be turning in her grave as the pain and upset continue for the family..

It is essential in circumstances of fractured families when making a Will that the person making the Will has expert legal advice in order to avoid circumstances where any money in the Estate is not spent on legal fees defending the person's intentions set out in their Will.

Lamrocks Solicitors has a New South Wales Law Society Accredited Specialist in Wills and Estates and can provide expert advice in these circumstances.