NSW Mothers original will lost, daughter pushed out by distant relative

[onyx]

Hi,
My mother had just passed. We had been estranged for so many years and a distant relative took over. My mother abused me and I had had enough, I did not know where she was. I found her in a home and visited every week as she had dementia. The distant relative is the Executor. I am not in the will. I am her only child.
The executors solicitor wants to know if I am contesting the will and will I be employing a solicitor.. They have lost the original.will I do not want the stress but for my disable child. They will not disclose how much the estate is worth.
What should I do, thank you. ,lois

 

[Perp]

Hi,
My mother had just passed. We had been estranged for so many years and a distant relative took over. My mother abused me and I had had enough, I did not know where she was. I found her in a home and visited every week as she had dementia. The distant relative is the Executor. I am not in the will. I am her only child.
The executors solicitor wants to know if I am contesting the will and will I be employing a solicitor.. They have lost the original.will I do not want the stress but for my disable child. They will not disclose how much the estate is worth.
What should I do, thank you. ,lois

Under the law, the test for a family provision claim consists of two steps.

1. Are you an eligible person to make a family provision claim?
2. Does the will make adequate provision for the eligible person - for their maintenance, education, and advancement in life?

As a child, you are an eligible person. Your child - your mother's grandchild - would only be an eligible person if they were dependent on your mother at the time of her death, which it doesn't sound like from what you've said.

The second question is the one that's extremely difficult to predict, and will depend very heavily on the particular circumstances. Courts have upheld wills, and declined to make family provision, in cases where there has been long estrangement between parent and child. But other cases have gone the other way. Being responsible for a disabled child, plus your recent reconnection with your mother prior to her death (if I'm reading that correctly), may be factors weighing towards a family provision. With respect to the latter factor, you could argue that your reconnection would have caused your mother to include you in her will again, but for the fact that she had dementia, which may or may not be persuasive.

These cases can, however, be very expensive - you'd be looking at $10s of thousands in legal fees for each side.

Speak to a lawyer. If they recommend applying, and you are made an early offer to settle that your lawyer considers reasonable, you should strongly consider accepting. I'm aware of many such disputes consuming half or more of the estate in legal fees.

 

[onyx]

Under the law, the test for a family provision claim consists of two steps.

1. Are you an eligible person to make a family provision claim?
2. Does the will make adequate provision for the eligible person - for their maintenance, education, and advancement in life?

As a child, you are an eligible person. Your child - your mother's grandchild - would only be an eligible person if they were dependent on your mother at the time of her death, which it doesn't sound like from what you've said.

The second question is the one that's extremely difficult to predict, and will depend very heavily on the particular circumstances. Courts have upheld wills, and declined to make family provision, in cases where there has been long estrangement between parent and child. But other cases have gone the other way. Being responsible for a disabled child, plus your recent reconnection with your mother prior to her death (if I'm reading that correctly), may be factors weighing towards a family provision. With respect to the latter factor, you could argue that your reconnection would have caused your mother to include you in her will again, but for the fact that she had dementia, which may or may not be persuasive.

These cases can, however, be very expensive - you'd be looking at $10s of thousands in legal fees for each side.

Speak to a lawyer. If they recommend applying, and you are made an early offer to settle that your lawyer considers reasonable, you should strongly consider accepting. I'm aware of many such disputes consuming half or more of the estate in legal fees.

 

[onyx]

Hi,

Thank you for all your help, much appreciated. Kind regards, Lois