Luisa Di Bernardo

Provision obtained for son in contested estates matter despite long estrangement with the deceased

Our solicitor Luisa Di Bernardo represented a client in a contested estates matter. The client was an adult son who was the only child of the deceased. The son and deceased had been estranged for more than 50 years.

The deceased had not left any provision for the adult son in their will and no specific reasons for the exclusion had been provided in the will. The estate was instead left to multiple charities, a nephew and friends. The deceased was not survived by a spouse or partner.

Ms Di Bernardo was able to argue that the deceased was responsible for the estrangement after she continued to ignore her son. In addition, it was established that the adult son was in dire financial circumstances and was incapable by reasonable means, of providing adequately for his own support.

Given that multiple parties were involved, a pragmatic approach was adopted to engage in an early mediation.

Had the matter proceeded to a trial, there was a risk that due to the lengthy estrangement the amount of provision would have been very limited or even that none would have been awarded at all.

However, the matter resolved at mediation and we were able to successfully procure substantial provision for the client.

Contested estates matter resolved in client’s favour

Our solicitor Luisa Di Bernardo represented a client in a contested estates matter. The client was the adult son of an unregistered domestic partner of the deceased and was seeking provision from the deceased’s estate.

The deceased’s domestic partner had died more than a decade earlier (and the adult son had received provision from this estate whereas the deceased did not) however the adult son continued a relationship with the deceased.

In 2016, the Supreme Court of Victoria decided the case of Bail v Scott-Mackenzie [2017] VSCA 108 which was successfully argued by Armstrong Legal. In that case it was found that a child of a de facto spouse was a ‘step-child’ of the deceased and therefore an eligible person to make a family provision claim in Victoria.

Based on that decision, Ms Di Bernardo argued that the client was entitled to provision from the deceased’s estate.

The estate did not accept that the deceased was in a domestic relationship with the woman given they resided in separate residences and there was no mixing of finances between the couple. A significant amount of historical evidence was obtained including third party witness statements in respect of the relationship between the deceased and the woman.

If the matter proceeded to a trial and the court did not accept that the deceased and the woman were in a domestic relationship, the potential outcome for the adult stepson was that the claim could have been dismissed which could have resulted in a personal costs order being awarded.

The matter successfully resolved shortly after the first mediation and before a trial date was set down by the court.

The matter illustrates that eligibility to claim further provision from a deceased estate is not necessarily straightforward and that an extensive amount of historical evidence may need to be obtained in order to support a person’s eligibility.

Provision obtained for estranged son of deceased, despite competing claims

Our solicitor Luisa di Bernardo represented a client in a contested estates matter. The client was the son of the deceased and had been estranged from him for approximately seven years.

The deceased had not left any provision for the client in the will and the reason for the exclusion had been provided for in the will. The estate was instead left to a grandchild. The executor was not a family member.

The matter was complex in that it was a modest estate and another child had not been provided for in the deceased’s will. The other excluded child sought provision from the estate. He was already part-owner of some of the property in the estate.

A pragmatic approach was adopted and early in the matter, our client made an offer to resolve his claim. However, due to the multiple parties involved, it did not resolve.

The client’s evidence was that the deceased was responsible for the estrangement. In addition, it was established that the adult son was in dire financial circumstances. Where there is an estrangement, the court will want details of who was responsible for the estrangement and whether there was any reconciliation.

Had the matter proceeded to a trial, there was a risk that due to the modest size of the estate and the multiple parties, no amount of provision may have been awarded to the adult son. The matter resolved at mediation and we were able to successfully procure provision for the adult son despite the multiple complexities presented.

Provision obtained for adopted adult daughter

Our solicitor Luisa di Bernardo represented a client in a contested estates matter. The client was an adult adopted daughter of the deceased.

The client had not been given any provision in the deceased’s will and significant reasons for her exclusion had been set out. She sought adequate and proper provision from the deceased’s estate.

The estate had been left to grandchildren; great-grandchildren and to persons who were not blood relatives. There had been a complicated history between the adult daughter and the deceased which included periods of estrangement.

The adult daughter’s evidence provided that she had fallen on hard times and was in dire financial need of provision. Despite the significant reasons for exclusion in the will and the complicated relationship with the deceased, we were able to successfully resolve the matter at mediation and obtain provision for our client.

Contested estates matter resolved at mediation

Our solicitor Luisa Di Bernardo was approached by two clients who were the adult children of the deceased in a contested wills matter.

The deceased had a spouse and they were separated, but not divorced. The spouse was our clients’ mother. The clients had not been left any provision in the deceased’s will and they sought provision from the estate.

The clients had contributed to the building of the estate by performing farm work and other tasks for which they had not been properly paid. There had been a challenging relationship between our clients, the deceased and the surviving spouse, coupled with a significant history of trauma.

Despite the difficult familial relationships, the matter was successfully resolved at mediation with the estate agreeing to pay the adult children a lump sum of money.

Equitable Claim Results in Increased Inheritance

Our solicitor Luisa di Bernardo was retained by a client who was the adult nephew of a deceased person who had no children or partner.

The client had been given some provision in the deceased’s will. He was not eligible to seek provision from the estate.

There had been promises made to the client during the deceased’s lifetime in respect of the deceased’s farm. In reliance on these promises, the client had worked on the farm without proper pay. Court proceedings were commenced in respect of claims in equity.

We were successful in securing an agreement with the other party to engage in early mediation. This resulted in the client obtaining double the amount he was expecting to receive from the deceased’s estate.

Provision obtained for adult daughter in contested estate matter

Our solicitor Luisa Di Bernardo assisted a client who was an adult child of the deceased in a contested estates matter. The deceased had had a spouse who had passed away.

The client had not been left any provision in the deceased’s will. The client sought provision from the estate.

The estate was of a modest size and there was an adopted adult son who could have made a claim as he has been left out of the will. This would have impacted the client. There was also significant animosity between the parties.

Despite the risks, the parties adopted a pragmatic approach and were able to resolve the situation without proceeding to a mediation and incurring substantial costs.

Declaration claim dismissed and provision secured for adult daughter of deceased

Our solicitor Luisa Di Bernardo assisted the adult daughter of the deceased in a contested estates matter. The client had commenced a claim for provision as well as a claim seeking that the executor repay the deceased’s superannuation benefits to the estate on the basis she had breached her fiduciary duties.

The executor applied for a summary judgment against the client to have the declaration claim dismissed. We successfully defended this claim.

We were subsequently successful in securing an agreement with the other party to resolve both proceedings, which resulted in the client securing a significant portion of the estate.