Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 27 October 2018.
John, a single man with no children, suffers a stroke at the age of 45 and moves into his mother’s home.
John resides with his mother, Ruth for eight years before her death.
Ruth’s will allows John to continue living in the home for three years on the condition that he pays the mortgage, rates and insurance and keeps the property in reasonable repair.
After the three-year period, the will provides that the property is sold and John receives 45% of the proceeds of sale, his sister Mary receives 30% and his brother Greg receives the remaining 25%.
John is concerned that his share of the proceeds of sale will not be sufficient for him to comfortably relocate and he decides to challenge his mother’s will.
John states that due to his poor health following the stroke, which includes cognitive impairment and depression, his needs entitle him to a greater share given that he has no assets and only receives a disability pension.
Mary says that she also has substantial needs. She was involved in a serious car accident leaving her with a brain injury, five broken discs in her back and a leg injury that resulted in an amputation above the knee. She is only able to work part-time and has negligible other assets.
Gary is in a better financial position than his siblings but his home is subject to a substantial mortgage.
In dismissing John’s claim, the court states that Ruth had “carefully balanced the competing claims on her testamentary bounty and made adequate provision for John whilst also seeking to provide for his siblings”.
Although his claim was unsuccessful, the court decides that John’s legal costs are to be paid out of the estate.
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.
