Was son entitled to share of mother’s estate to boost his superannuation fund? Which case won?
Son sues mother’s estate seeking “notional estate” order
A case heard in the NSW Supreme Court of Appeal concerned a 43 year old electrician who sued his late mother’s estate. In her will, she gave everything to her husband (the man’s stepfather) and, in the event of both dying, equally to all of their children. The joint assets were worth in the vicinity of $3 million, meaning that the deceased mother’s share was approximately $1.5 million.
All assets were held in the mother and stepfather’s joint names, meaning that the jointly held assets would transfer directly to the husband. The deceased mother had two sons to a previous relationship, while her husband had two daughters to a previous relationship. They were a blended family and had one child of their own relationship.
Son not able to bring claim against stepfather’s estate in future if cut out of will
As current NSW laws prevent a stepchild bringing a claim against a stepparent’s estate (without additional factors such as being a member of the household and being wholly or partly dependent upon the stepparent), the risk was that the stepfather might change his will in the future to cut the man out of his mother’s estate.
Seeking to guarantee some of his inheritance, the man brought a claim and asked the court to make a “notional estate” order to reflect the joint assets. The court of appeal agreed that the man, as a biological child of the deceased, had standing to bring the claim.