We acted for the deceased’s son (let’s call him “Peter”). Peter’s mum gave him a “life interest” in her Will. After Peter’s mum died, her daughter-in-law (“Jane”), who was Peter’s recently separated spouse, brought a family provision claim against the Estate.
Peter and Jane had lived as a couple in Peter’s mum’s house for approximately 26 years, rent-free. Peter had resided at the property for 42 years in total. Both Peter and Jane suffered from a disability. They had 3 children who also lived in the home.
The deceased had excluded Jane in her Will. The deceased had also granted Peter with a life interest in the property rather than gifting him the property in her Will. The reason for this was in dispute. Peter and the Estate considered the deceased did this deliberately to ensure that if Peter and Jane got divorced in the future, Peter would not lose half of his inheritance. However, there is always two sides to a story. Jane claimed her mother-in-law had only provided a life interest for Peter for fear of him squandering his inheritance. Jane claimed her mother-in-law had a moral duty to provide for her given she was financially dependent on her mother-in-law and in a close personal relationship with her for over 26 years.
The main asset in the Estate was the family home, worth approximately $1,500,000.
Jane (the Plaintiff) filed a Summons seeking an Order for provision under section 59 of the Succession Act 2006 (NSW) and an Order extending the time for bringing a claim under section 58(2). Affidavits of evidence were filed and served by Jane, the Estate and Peter (the life interest holder). The case proceeded to mediation.
At mediation, all parties were represented including, rather unusually, the life interest holder (Peter). Peter wanted representation to ensure the Estate lawyers did not settle on terms that he disagreed with.
Courts are reluctant to vary wills but will do so where the circumstances warrant that provision be made. We had advised Peter prior to the mediation that Jane had reasonably good prospects of success of being awarded some money if it proceeded to trial. The question was how much should she get? Peter was wise to insist on representation at the mediation given the Estate lawyers appeared to want to settle at a higher figure than what Peter would have been happy with. His attendance via our firm raised the prospect that the dispute may not end unless he too was happy with the settlement. We insisted any settlement also include a Binding Financial Agreement under the Family Law Act 1975 so that there was no prospect of Peter being forced to deal with a second family law dispute after the Estate proceedings concluded.
All parties eventually agreed to paying Jane $210,000 inclusive of legal costs and a binding financial agreement in relation to the foreshadowed family law proceedings.
We at V.S. George Lawyers are well placed to assist client who require advice in relation to any dispute over an assist whether it is family provision and/or disputing the validity of a Will.