Adequate provision be made from deceased’s estate; Be removed as the executor

Adequate provision from the estate of deceased pursuant to section 6(1) of the Family Provision Act 1972 (Act).

Our client looked after her elderly parents and for many years she gave up work to look after them. Her parents promised her the family home because they realised that she was missing out on earning an income and accruing superannuation. However, due to her mother’s mental health issues which caused her to be very fearful of doctors, she asked our client to move out when our client organised a doctor to come and see her due to the decline in her health. The mother asked our client’s brother to move and her will was subsequently changed and our client was left completely out of her mother’s Will after she had spent almost 19 years collectively looking after her parents on their promise she would receive the family home.

3 years later our client’s mother passed away leaving her brother the executor and the only beneficiary under the will.  Her brother then threatened her that if she ever challenged their mother’s Will, he would lock her inside the house and burn the house down. Although her brother was executor, she also refused to provide her with any documents relating to the estate and she could not afford solicitors as she was on Centrelink.  Our client was referred to us from Law Access. By the time the matter reached our office, she was well and truly out of time to bring a family provision claim. We had to obtain the Court’s leave to bring a claim out of time and we were successful even though she was approximately 5 years out of time.

Once the Court granted leave for our client to bring family provision proceedings out of time, our client immediately commenced those proceedings. At the hearing, the Court ordered that:

1. our client’s brother was removed as the executor and the Public Trustee be appointed in his place; and
2. our client receive the whole of her mother’s residuary estate.

Proper Provision be made from deceased’s estate

Our client is the widow of the deceased. She suffers from poor health and was under financial stress from the death of the deceased. The deceased was the sole owner of the matrimonial home, which our client had lived in since she married the deceased approximately 33 years ago.

In the deceased’s will, he made small provision for her of cash in a bank account, which by the time he passed away had been closed and also gave her life interest in the matrimonial home subject to conditions, which were restrictive on her quite enjoyment of the Property.

We commenced family provision proceedings on behalf of our client and we successfully negotiated for our client to receive the whole of the matrimonial property.  

Further Provision from Deceased’s Estate when Estate Distributed Equally

Our client was the executor of his deceased mother’s estate. Along with his two brothers, our client was also an equal beneficiary of his late mother’s estate pursuant to her Will. Our client believed that his mother did not make adequate provision for him from her estate for his proper maintenance, support education and advancement.

Our client left his full time employment and moved to Perth to be his mother’s full time carer. Our client lived with his mother at her house without having to pay rent or utilities and received a carer’s pension for looking after her. The period of time in which he was the carer for his mother, effected his ongoing financial position and reduced his employability and ability to accrue superannuation for his retirement. At the time of her death, our client was unemployed, his health had deteriorated and he was suffering from financial hardships. The situation left him without adequate provision from his late mother’s estate for his proper maintenance, education or advancement where he was not able to even afford accommodation had the deceased’s estate been equally divided into 3 as per the terms of his late mother’s Will.

We successfully negotiated to enter into a deed of family arrangement to alter the distribution pursuant to the Will for him to receive 2/3rds of the deceased’s estate and have his costs paid from the estate.

Equal distribution is not always equitable (fair) distribution. Although the Courts are reluctant to alter the Will of a deceased person, the Court often considers, amongst other things, the need of the applicant.