The deceased is the mother of several minor children aged under 10, who died in New South Wales.

Under the Will everything goes to her husband, but the mother was almost at the stage of divorcing him, when she died.

She owned two properties: a rental property in her name and the family home that she held in joint names with her husband, which was the most valuable property.

The husband also had a property in his own name.

Under the Intestacy Rules the husband will stand to inherit over half of the rental property and the children will inherit the rest.

The husband will also take full ownership of the family home as the surviving joint proprietor.

An aunt wants to know whether she can make a claim on behalf of the children for a greater share of their deceased mother’s estate, so that the estranged husband gets less.

Under the Intestacy Rules it is possible for this to be done.  As the mother had died without a will, rather than challenging the Will, the action would be to challenge the Intestacy Rules.

Clearly the rental property which is in the mother’s name is her property, and can be used to provide money for the children, but the children will have no direct claim over the estranged mother’s share of the family home  that passes to their father as the surviving joint owner.

In relation to this jointly owned property, if the children are successful in making a claim for further provision against the mother’s estate and the value of the rental property is not sufficient to pay out an amount that the Court ordered, then the court may order that  jointly-owned property be made available to boost the size of the estate and therefore help to meet the payment to be made by the mother’s estate to the children.

Care needs to be taken to ensure that in all of the circumstances that the children have financial need, as the father will no doubt claim that the children do not have financial need.

The claim must be brought within time.  Even though the rental property in the mother’s name is not of great value, because of the availability of the notional estate that may be retrieved, this should be a successful claim.