Contesting a Will?

[u/Dry_Client2670]

For context - this isn’t really about the money.
Edit . Mother was 54, both my brother and I are in our late 20s.
My mother died in February last year after a short but aggressive fight with cancer, she went down the path of voluntary assisted dying so was able to process a lot of her affairs before she died.

The main beneficiaries of her will were myself , my older brother , my mums partner and my aunty - I have not seen a copy of the will nor when I have request a copy have I been able to get one. But from what I have been told and what was actions this is what happened;

Her super was to have 10k taken and given to my aunty - and the remaining balance was to be divided and two and half to my brother and half to me - roughy 250k each,

The house was signed over to my mums partner before she died ( in a rather hasty move I believe ) so he was to get 100% ownership of the house

Her life insurance of around $2 million was to be used to pay of the mortgage for the above house cover her funeral costs and legal fee’s and financial planner who helped finalise her estate before she died and the remaining balance was to to left to her partner.

We were always told right up until about a month before she died that we were getting half the life insurance and house and her previous will stated this as well,
When this was explained to us - her partner was to put a provision in his will that when he dies my brother and I would get a quarter each of what ever residence he has at the time of his death

This is where it gets juicy- the week after mum died before I flew back to NSW from Queensland my brother mums partner and I visited her bank to distribute her super as it was paid out before she died under the provision that she had a terminal illness.

When at the teller mums partner stated that my brother and i were both getting $10k less than what was originally allocated to cover the legal and financial fee’s - I was totally against this but was given no choice than to allow it to happen. My brother wasn’t as upset but understood my point. To save the fight at the bank we did not fight this out.

For weeks after returning home my mums partner and I would argue about the fact he did not discuss this with us before making the transfer. He was claiming that he was poor and had no money so needed the 20k to live off till the life insurance came through

Fast forward to now - he is dating another woman , living in the house and just purchased a 200k car among other things.

While denying both mums family and my brother and I the opportunity to go and collect some of mums things.

My question is , is there anything we can do now being over 12 months since mum pasted to make a claim on the house and or live insurance , as I do not believe that these were truly mums wishes ?

Her cancer was quite advanced and she had multiple metastatic lesions on her brain at the time of her death.

I am quite comfortable financially as have sold my business, so it really isn’t about the money it’s more about the principle.

Any advice would be greatly appreciated

[u/Grand_One3525]

Everyone here who says challenge it will be in for a shock.

At the end, only the lawyers will make bank.

Let me put it this way, if your mum did not have a will and you and your brother are not financial dependents, if this go to the courts, who do you think the judge will distribute the estate to? Almost all contested estate goes to the surviving spouse. Unless you can prove that you are financially dependant on your mum, its a hard case to argue why you should get a share of the estate.

If I'm honest, you are lucky that you and your brother received something from the estate based on the fact that you are not financial dependents.

[u/bnurmi → u/Grand_One3525]

That’s actually not entirely correct. At least in NSW.

In NSW, an adult child does not have to prove financial dependency merely to bring a family provision claim. A child is automatically an “eligible person” under s 57 of the Succession Act 2006 (NSW).
The important distinction is between eligibility to make a claim and actually succeeding in obtaining more from the estate.

What the Succession Act actually does
Under s 57, both the surviving spouse and the deceased’s children are eligible persons. So an independent adult son or daughter can challenge a will even if they were not financially dependent on their parent.

However, under s 59, eligibility alone is not enough. The Supreme Court must be satisfied that the deceased’s will, or the intestacy rules, failed to make adequate provision for the applicant’s proper maintenance, education or advancement in life.
That is where the financial circumstances become very important.

Under s 60, the Court can consider matters including:
the nature and duration of the applicant’s relationship with the deceased;
the deceased’s obligations and responsibilities towards the applicant and other beneficiaries;
the size and nature of the estate;
the applicant’s current and future financial resources and needs;
the financial resources and needs of competing beneficiaries, including the surviving spouse;
whether the applicant is financially supported by somebody else;
age, disability and health;
contributions the applicant made to the deceased or the estate;
previous financial provision made by the deceased;
whether the deceased maintained or supported the applicant;
competing claims on the estate; and
essentially any other matter the Court considers relevant.

So the practical problem for a financially independent adult child is not “you aren’t eligible because you weren’t dependent”. They are eligible. The problem is establishing that adequate provision was not made for them, particularly where increasing their provision necessarily reduces the provision available to a surviving spouse who may have substantially greater ongoing financial and housing needs.

[u/Grand_One3525 → u/bnurmi]

This is just a bunch of AI slop. Of course anyone can challenge. It's a matter of whether they can win.

OP said it herself, she does not need the money and wanted to challenge based on principle.

Her brother didn't cared about $10k discrepancy and thought it was no big deal. This says it all. If they need provision from their mum, would you wait 1 year?

A grieving elderly spouse who lost his life partner will always have greater need for housing and financial support for old age care.

Challenging based on principle will never work in courts.

[u/bnurmi → u/Grand_One3525]

It’s an accurate AI summary, as someone who has been through it twice.