MATTHEW passes-away at the age of 80 years, without leaving a will.

Matthew is survived by two daughters, Penny and Dianne.

Penny has three children.
Penny and her three children lived with Matthew for many years and continue to reside in his home.

Matthew also left $150,000 in shares and cash.

In the absence of a will, Matthew’s estate is to be divided equally between Penny and Dianne.

This would result in the sale of the home, leaving Penny and her children without accommodation.

Penny makes a claim in the Supreme Court, on behalf of herself and her children, seeking a “family provision” order to the effect that they are granted the right to reside in the home.

Normally, grandchildren do not have standing to make a claim of this nature, however, given that they resided with the deceased and were directly dependent upon him, they are able to make such a claim.

Dianne opposes the claim, seeking the sale of the property on the basis that she is entitled to half of the proceeds of sale.

The Court carefully considers the financial circumstances of all the stakeholders.

In reaching a solution to balance the competing interests, the Court ultimately orders that Penny and her children shall be entitled to remain in occupation of Matthew’s home on the condition that she keeps the home in reasonable repair, pays all of the outgoings, including utilities, rates and insurances and pays Dianne one-third of the market rent.

The house is not to be sold as long as Penny complies with the conditions of occupation and in the meantime, the property is to be registered in Penny and Dianne’s names as tenants in common.

Given the relatively small value of liquid assets in Matthew’s estate, the Judge and the legal representatives involved were careful to ensure that the legal costs involved in the hearing were minimised, so the house did not need to be sold.

Email Manny Wood, Principal Solicitor and Accredited Specialist in Wills and Estates at TB Law at manny@tblaw.net.au or call him on (02) 66 487 487.

This fictional column is only accurate at today’s date and is not legal advice.

By Manny WOOD