Do I have even have a case against them?

14-June-2018 Contested Wills By admin

Can a family-provision claim be brought against the estate of a step-father by a son whose mother has died?

In the case of Hill v Anderson, The Supreme Court recently considered whether David Anderson was adequately provided for following the death of Michele Hill, his biological mother.

Mrs Hill married her second husband Edward Hill 24 years prior to her death. She had five adult children from her previous marriage, of which Mr Anderson was one. The Defendant, Mr Hill, had four children from a previous marriage.

“This case shows that a child from a blended family is eligible to make a claim on a step-parent’s estate,” Streeterlaw’s Jamal Kayrouz said.

Mr Anderson’s claim on Mr Hill’s Ermington property, in Sydney, was on the basis that it formed part of his mother’s notional estate.

A notional estate is where a deceased person’s property, because of their situation while they were alive, is held by another and bypasses the original estate.

Ms Kayrouz said the Court decided that a child of a deceased person might have a claim on the matrimonial home even though the parent had remained quiet, in terms of legalities, for some time.

“The Court also took into consideration the fact the defendant had few assets and that he intended to stay in his Ermington home,” she said. “He wanted to keep working from the house and his legal team argued replicating it would be difficult should he be required to sell.”

The son was also found not to have been close to his mother, visiting her three or four times each year. He also had no key to the house and had only lived there for a short while.

“Clearly, people’s circumstances are different,” Ms Kayrouz said. “Streeterlaw can provide in-depth insight into any complex situation.”

Accordingly, the Court decided that no provision should be made for Mr Anderson. However, the Court did remark that had the estate of the deceased been substantial, making provision for the son would have been “more possible”.

To be guided in the right direction call Streeterlaw today on 02 8197 0105.

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