In some circumstances, there are actions that you might be able to take if you disagree with the distribution of the estate. These are commonly bringing a will dispute or contesting a will through a family provision claim.
An unequal distribution might not have been intended by the testator of the will. A will dispute or challenge can be brought by you, if you have standing. See our previous blog HERE on standing and non-family members disputing a will for more information.
One example of this is Hobhouse v Macarthur-Onslow [2016] NSWSC 1831. The deceased, Lady Dorothy Wolseley Macarthur-Onslow, executed a will in 1988 which provided for an equal distribution of her estate between her two children; Lady Hobhouse, the plaintiff, and Mr Macarthur-Onslow, the defendant. In 2002, Lady Macarthur-Onslow was being treated for dementia. In 2004, she executed another will, which was to be the final one before her death in 2013. The effect of the second will was to permit Mr Macarthur-Onslow control to distribute a substantial portion of the property of the deceased, including to himself. The plaintiff initiated a will dispute on the basis of a lack of capacity of her mother to execute the will.
The Court found that her mother had capacity at the time of executing the will and the will dispute on this basis was unsuccessful. However, the Court accepted a separate argument from the plaintiff that the deceased did not know and approve of some of the clauses of the will. This led to the Court severing these clauses which would have led to an unequal distribution of the will, to ensure an equal distribution as intended by the deceased.
An unequal distribution, or no distribution, may have been the intention of your parent when drafting the will. Nevertheless, you may apply for a family provision claim under the Succession Act 2006 (NSW) if an inadequate provision has not been made for your proper maintenance, education or advancement in life.
The Court may consider a range of factors in deciding whether to make a family provision order and the nature of the order:
- The relationship between you and your parent
- The obligations and responsibilities owed by your parent to you, your siblings and any other person benefiting from the will
- Your parent’s estate and liabilities
- The financial resources and needs of yourself, your siblings and any other person benefitting from the will
- The financial circumstances of the person that you live with
- A disability that you, or your siblings and any other person benefiting from the will may have
- Your age
- Your contribution to the acquisition, conservation and improvement of the estate of your parent or to the welfare of their family, for which you did not receive adequate consideration
- The provision made for you by your parent
- Your parent’s testamentary intentions
- Whether you were being maintained by your parent
- Whether any other person is liable to support you
- Character and conduct before and after your parent’s death
- The conduct of any other person before and after your parent’s death
- Any other matters the court considers relevant
. There are obviously many considerations the Court has when deciding whether to make provision for you from the estate, as the will maker, by making a will, had clear intentions. The Court has to weigh all these considerations, as well as the testator’s testamentary freedom, to achieve a just and equitable outcome.
If you would like further information on a will dispute or contest, or any other information on wills, please contact a lawyer on 9635 7966 or through the website www.matthewsfolbigg.com.au.
