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A Long Road To Success

Friday, March 31, 2017

Case Reference:  L132061

Type of Case:  Deceased Estate Litigation – Family Provision Application

The Situation:  The deceased (“Roger”) died in Townsville in 2004.  His will named friends and remote relatives as the beneficiaries of his estate and left nothing to his children.  The will was made about two weeks before Roger died.  Roger’s adult daughter, “Karen,” contested the validity of the will on the basis that it was made in suspicious circumstances and that Roger did not have mental capacity to make the will.  As Roger had chosen to be estranged from his family for many years, the executors wanted proof of Karen’s identity.  Similarly, Karen had suspicions about the identities of the beneficiaries named in Roger’s will.  These issues caused considerable delay in the conduct of the case.  These types of cases usually take about 18 months to 2 years to reach a conclusion.  But in this case Quinn & Scattini received instructions to represent Karen in 2013, after the case had already been on foot for about 8 years.  Due to medical evidence becoming available regarding Roger’s mental capacity, the legal action contesting the will on the basis of Roger’s mental capacity was discontinued in late 2013.  As Roger’s will did not make any provision for his children, Karen also filed an application for further provision from the estate.

Not only did the will fail to make any provision for his children, but Roger during his entire life had failed to provide for his children.  He spent his money on cigarettes and gambling while his wife and young children, in a regional Queensland town, were forced to live in a shack that had dirt floors and only chicken wire for walls.  Roger’s estate was only worth about $300,000.  One of the ingredients of a successful application for further provision from an estate is that the applicant must show to the court that the applicant needs provision from the estate.  In this case, Karen owned her house mortgage-free and had significant superannuation, so that the value of her assets was almost double the value of the estate.  This was a concern to the executor who was of the opinion that they should not reach a settlement with Karen on the basis that, if the matter went to court, a judge might decide that Karen did not need financial assistance from the estate.

The Result:  In early 2017 both parties attended a compulsory mediation.  The mediation highlighted the vast chasm between the views of Karen that the persons named in Roger’s will, who were unknown to her, should not receive anything from Roger’s estate, and the executor’s view that Karen did not require any financial assistance from the estate.  But after a full day of both parties sticking to their guns, a settlement was finally achieved at the mediation.  The outcome meant that Karen, who originally was receiving nothing from her father’s estate, will receive 65% of the estate.

As every case is different, the cases reported here cannot be taken as an indication of a similar outcome being likely in your case, and these reports are not to be taken as legal advice about your particular situation.

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