Legal Hypothetical: No bars on estate claim

MARVIN had been estranged from his family for several years and is now serving a lengthy prison sentence for a serious criminal offence.

As a former legal officer in a national security agency, he was charged with leaking classified information.

Following the death of his mother, Hilary, in 2023, her Will appointed her daughter, Emily, as executor and left the entirety of her estate including the family home, savings, and personal belongings to Emily.

Marvin was not mentioned in the Will.

Several months after probate was granted, Emily received correspondence from Marvin’s solicitor.

Marvin was making a family provision claim in his late mother’s estate.

In support of his claim, Marvin stated that he had shared a close relationship with his mother for most of his life.

He said that she had supported him both emotionally and financially during periods of hardship, and being excluded from the Will did not reflect her true intentions.

Emily disputed the claim.

She argued that Marvin’s conviction and incarceration disqualified him from making a claim.

She also raised the issue that Marvin, as a serving prisoner, did not have the legal right to commence civil proceedings at all.

The matter came before the Supreme Court of New South Wales to determine whether Marvin, despite his incarceration, was legally entitled to bring a family provision claim.

While acknowledging the gravity of Marvin’s offence and the distress it caused on the family, the Court confirmed that incarceration alone does not remove a person’s civil rights.

The Court held that the relevant legislation did not prevent Marvin from making a claim, provided that proper procedures were followed.

As Marvin had filed his application within 12 months of Hilary’s death, the Court allowed the matter to proceed.

The decision clarified that despite his conviction and imprisonment, Marvin was still entitled to commence proceedings, which led to the parties ultimately reaching an out-of-Court settlement for a substantial sum.

Thank you to lawyer Ellysha Laklem, for her assistance with this column.

This fictional column is not legal advice.

By Manny WOOD, Solicitor