left out of will stepson cut out of will family litigation estate challenge will dispute lawyers queensland

In a recent Queensland Supreme Court decision Currey v Gault [2010] QSC 27 (8 February 2010), the Court has found that where a stepchild is left out of a Will, the stepchild will be entitled to provision from the Estate.

The Facts

  • The Willmaker left an estate worth $3 million to her niece and nephew and made no provision for her stepson (who was the child of the Willmaker’s second husband);
  • The Willmaker was not particularly close to her niece and nephew;
  • There was evidence that the Willmaker had a complicated relationship with the step son – for example, there was evidence that she harboured “ill-will” towards the stepson;
  • The Court was satisfied that the stepson had been dutiful and respectful to the Willmaker;
  • At the time the application was made, the stepson was in full time employment and in a stable de-facto relationship with no children. They had a net asset position of approximately $635,000.00 and lived a “modest lifestyle”.

Conclusion

The Court took into account the size of the estate, the applicant’s modest financial position and the applicant’s respectful relationship between the Willmaker and the principal beneficiaries named in the will.

Order

Given the above factors, the Court made the following orders:

  1. The Willmaker had not made adequate support for the step son’s proper maintenance and support; and
  2. Awarded the step son the sum of $900,000.00.

This case demonstrates that the Court will always take into account the Willmaker’s wishes but also, the circumstances of the applicant. If you need advice with regard to contesting a will or you have been left out of will, please do not hesitate to contact me.

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