Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 13 August 2016.
Ross dies at the age of 71, leaving an estate worth around $700,000.
Shortly before his death, Ross made a will, leaving $30,000 to each of his children, Mark and Leanne. The rest of his estate is left to his only other son, Luke and Ross’ three grandchildren in equal shares, with the effect that they each receive $160,000.
Ross and Mark had been estranged for seven years prior to Ross’s death. Mark earns $80,000 a year as a member of the Royal Australian Navy. He does not own his own home, but has a substantial superannuation fund.
Leanne had no contact with Ross for 19 years before his death. Leanne earns $50,000 a year and has assets, including superannuation, totalling $160,000.
Luke had a close relationship with Ross and lived with him for most of his lifetime. During the last six weeks of Ross’ life, Luke resigned from full-time work to care for him. Luke earns $45,000 per year and owns a recently constructed home with equity of around $280,000. Ross gave him the deposit of around $30,000 to purchase his house.
Mark and Leanne believe that they should each receive one third of their late father’s estate.
Unfortunately, the parties are unable to settle the matter amongst themselves and the matter proceeds, 2 years after Ross’ death, to a two-day hearing at a combined legal cost of $125,000.
The court states that the estrangement between Mark and Leanne and the deceased was “not callous or unfeeling” and that it did not demonstrate “ill-temper or violence”. The court therefore found that there was no “disentitling conduct” although the conduct did “restrain the amplitude of the provision that ought to be made”.
The court finds that the $30,000 bequests to Mark and Leanne do not constitute “adequate provision” and after considering the whole of the circumstances, awards Mark $90,000 and Leanne, $100,000. The increase in provision for Mark and Leanne was borne by Ross’ grandchildren.
