Legal Hypothetical: Estranged son seeks claw-back from joint bank account

SCOTT’S parents divorce and when he is three years old, his father Tom, moves out.

Tom remarries 20 years later and spends the next 30 years, happily married to Wendy.

Tom passes-away at the age of 75 and leaves the whole of his estate to Wendy.

Tom owned the matrimonial home and an investment property as joint tenants with Wendy and had joint bank accounts with Wendy, totalling $1 million.

Upon Tom’s death these assets pass to Wendy by way of “survivorship”.

Scott makes a claim against Tom’s estate.

The Court hears that there was only sporadic contact between Scott and Tom during their lifetimes, consisting solely of occasional phone calls. When he had children, Scott did not allow them to spend time with Tom.

The Court also hears that Scott received a $500,000 inheritance from his grandmother, Tom’s mother, 10 years ago.

When Tom passed away, Scott did not know that he was in poor health and did not know about his death until shortly before the funeral, which he attended as a “reflective observer”.

Scott makes a persuasive submission to the Court, that Wendy made no substantial contribution towards the joint bank accounts, which were derived primarily due to an inheritance that was received by Tom from his late mother’s estate.

The Court hears that Scott has three school aged children, that he and his wife are renting and are “going back financially”.

He has $150,000 of his grandmother’s inheritance left, $200,000 in superannuation and no other substantial assets.

Scott submits that due to his financial needs, he should be awarded $400,000.

Wendy says that he should only be awarded $100,000 from the bank accounts that are now in her sole name.

Although upon Tom’s passing, the bank accounts and the real estate became Wendy’s sole property, the Court makes a “notional estate” order clawing a “balanced figure” of $350,000 back into Tom’s estate by way of provision for Scott.

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

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

By Manny WOOD, Solicitor

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