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NSW Mother Deposited Money for Mortgage - Brother Now Contesting Her Will?

Discussion in 'Wills and Estate Planning Law Forum' started by Sydney, 9 March 2016.

  1. Sydney

    Sydney Active Member

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    Hi Guys,

    My mother passed away last November. We were in a joint mortgage on the property that we both lived together in for the last 20 years. She has left me her share of the property in her will and I am the sole executor of will.

    Six months prior to her passing she deposited $30,000 into our mortgage account to ensure that I was well ahead of the payments as I had to leave my full time employment 5 years ago to become her full time carer and she wanted to make sure I had a safety net once I lost the carers payment.

    My brother who was estranged from her is now intending to contest the will under the Family Provisions Act as he believes the minimal amount that he has been left has been left is unfair.

    After researching the Act and the criteria needed, I feel strongly that he would have minimal chances of succeeding with his claim.

    My question is, can the $30,000 also be considered as part of his claim considering that it was her choice to deposit this amount towards the mortgage whilst she was still alive and of complete sound of mind?

    Kind regards
     
  2. Tim W

    Tim W Lawyer

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    If the money was given during life, then it will almost never be part of the estate.

    If the payment is better described as a payment in advance,
    or a lump sum part payment of a debt to which she was a party while alive,
    and it was not a money-in-your-hands gift to you,
    then all she's done is pay a debt, same as any other.

    Going only by what you have told us here, missing facts missing
    and unstated ifs buts and maybes not allowed for,
    I don't see how this money, or the transaction,
    can for the basis of a successful Family Provision Claim.
     
  3. Sydney

    Sydney Active Member

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    Thank you very much for your quick reply Tim it's greatly appreciated.
     
  4. winston wolf

    winston wolf Well-Known Member

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    I would say the $30000 and the share of the estate could be "notional estate" and be used to satisfy a claim.

    Assuming she died in NSW.
     
  5. Sydney

    Sydney Active Member

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    Hi Winston,

    So that could apply even if the requirements for a Family Provisions claim could not be satisfied?

    Yes she died in NSW
     
  6. winston wolf

    winston wolf Well-Known Member

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    What do you mean by "requirements for a Family Provisions claim could not be satisfied"?

    Notional estate is used to calculate the total that could be available to satisfy a claim. A notional estate determination will only be made if there is insufficient in the estate to satisfy a claim without it.

    As a child of the deceased, he is a valid claimant. Whether he has been adequately provided for in the opinion of the judge is another matter,
     
  7. Sydney

    Sydney Active Member

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    I do completely understand that as a child of the deceased that he is well within his rights to be eligible to contest.

    What I meant are the "Matters considered by the court" and the factors taken into account when deciding whether adequate or inadequate provision have been made.

    When you say "satisfy a claim" do you mean to satisfy a claim if he was successful, or to satisfy the requirements for a claim to be submitted to the court?
     
  8. winston wolf

    winston wolf Well-Known Member

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    Satisfy a claim if he was successful.
     
  9. Sydney

    Sydney Active Member

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    Thanks for clarifying that Winston,

    Seems to be such a confusing minefield and legal differences of opinion regarding Family Provision and in particular what is defined as Notional Estate. I guess every situation is unique and there is no clear cut answer to my question.
     

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