Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 10 February 2018.
Harry passes away at the age of 88. He is survived by his two daughters, Christine and Olivia.
Harry’s estate consists primarily of a house valued at $800,000.
Harry’s will appoints Christine as executor and gives the house to her. The rest of the estate is to be divided equally between the two daughters but after the legal costs and debts of the estate are taken into account, there is nothing left for Olivia.
Olivia commences action against the estate, naming her sister as defendant.
The court hears that Olivia received a gift of real estate from her parents when she married her husband in 1985, by way of an early inheritance.
The court also hears that Olivia is married with three adult children and has a mortgage of $500,000. Olivia is employed casually and her husband was recently made redundant.
Christine does not provide any evidence of financial needs but argues that because Olivia already received a house, the effect of the will is proper.
Each party incurs approximately $50,000 in legal costs.
The court makes an order to the effect that the real estate is sold and given her financial circumstances, Olivia receives $280,000 from the estate.
Christine appeals the decision.
The court of appeal states that respect should be given to Harry’s judgement as it can be seen that he has duly considered the claims on his estate. It also states that a court should not re-write a will and at times courts can attach too much significance to their discretionary powers.
Ultimately, the appeal court rules that in-line with community expectations, Olivia should receive no provision from Harry’s estate and dismisses her claim.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
