The relationship between Ms Foley and her mother had been strained for a long time; however, the former had never expected to be left out of her mother’s will – especially when her tough financial situation was no secret.
Ms Ellis left her estranged daughter nothing from her estate worth nearly $2.8 million – while Ms Foley’s own children and siblings came out substantially better off.
Bereft financially and emotionally, Ms Foley decided to take the matter to court.
In a landmark decision, titled Foley v Ellis (2008), the court ruled that the daughter be awarded $500,000 from the estate, even though Ms Ellis’ will indicated the contrary.
This highlights an important provision in Australian law: if you believe you have been unfairly left out of a will, you can challenge it in court.
Why can a will be legally disputed?
It is important to note that the process is usually over within 6 months and the court will look at several aspects before making a decision – nonetheless, the matter will be considered, accounting for the fact that estrangement alone does not absolve a parent of the responsibility they have towards their children.
The Family Provision Act 1982 covers this area of law, and encompasses extended family, such as grandchildren, ex spouses and dependents, as well as some others.
Can a will be defended?
Since the law looks at all circumstances relating to an appeal, there are times when the appeal is dismissed and the decree upheld.
This was the case when the court decided to disregard Stuart Ford’s claims that he should have been included in his father’s will.
His sister, Natalie Ann Vaisey Simes, was left with the entire estate and maintained that Mr Ford Sr was justified in leaving him out.
The judge found that Mr Ford Jr had made contact only once with his sole living parent over a 14-year period from 1990 to 2004. The single occasion when the two had met was brief and bitter and Mr Ford Jr verbally abused his father.
Based on these findings the court ruled that the will should be adhered to.
What are the costs involved?
The proceedings are usually quick and fruitful, being completely finilised within 6 months. A popular option is to seek professional advice from legal experts who offer a no win no fee service.
This way, if the results don’t turn in your favour you will not be left picking up the financial pieces of failing to successfully contest a will.
Give PK Simpson a call on (02) 9299 1424 for free legal advice.
— PK Simpson InjuryLaw (@PK_SimpsonAU) June 29, 2017