The testator, a retiree in his mid-sixties, died unexpectedly. He left a valid will and enduring power of attorney. We represented the defendant, the testator’s only child and executor of the estate, against a Family Provision claim under the Family Provision Act 1969 by the plaintiff, a female companion of the testator.
The testator and plaintiff had a relationship for 11 years. They never lived together in a shared household or intermingled any financial arrangements. Both had adult children from previous relationships.
Despite receiving a sizeable legacy, the plaintiff contested the will on the basis that it did not adequately provide for her proper maintenance, education and advancement in life. Separately, the plaintiff challenged the decision of the testator’s super fund to distribute his death benefit in line with his preferred nomination – a reminder once again of the importance of binding nominations.
Tanya Herbertson and the personal injury team were able to highlight significant issues with the plaintiff’s evidence, especially regarding her alleged financial dependence on the testator. The plaintiff described herself as ‘single’ for official purposes and her own estate plans and super provided only for her children, excluding any reference to the testator.
The biggest issue with a Family Provision claim for the plaintiff however was personal financial advice confirming that she had sufficient funds to meet her retirement needs in full, leaving a substantial inheritance for her children. In effect, any further provision would pass to her children. Needless to say, this was not what the testator had intended!
Ultimately, we obtained a favourable settlement agreement for our client which included a resolution of the outstanding superannuation complaint.
Some words from our client: “Thank you Tanya & team for your support through this difficult year. Your personal understanding was as important to me as your legal expertise. I’m grateful for all you’ve done to help uphold my father’s final wishes. I can now dedicate my time and energy to my young family.”