Published in The Coffs Coast Advocate on 8 November 2014.
Julie and John are in their early 60s. They have been in a de facto relationship for the last 15 years. Both Julie and John have two children to previous relationships.
When John dies at the age of 63, it is discovered that his will leaves the whole of his estate to his two children, Tony and Daniel. His will also appoints his two children as joint executors.
John’s estate, consisting of bank accounts and real estate is valued at just over $1 million.
John also had superannuation valued at a further $1 million.
Julie and John own their home jointly, also valued at approximately $1 million.
There is a significant mortgage secured over their joint home. Julie is concerned that she will be unable to service the mortgage, particularly that given her age, she will be unable to work full time in the near future.
Julie feels that she is entitled to further provision from John’s estate and consults a solicitor specialising in wills and deceased estates.
Her solicitor explains to her that because their home was owned jointly, the property passes directly to Julie regardless of the contents of John’s will. She is also advised that John’s superannuation fund, in the absence of a binding death benefit nomination, can also be distributed in a manner that does not conform with his will.
Julie’s solicitor makes submissions to John’s superannuation fund and the fund ultimately decides to pay the proceeds of the fund in equal amounts to Julie, Tony and Daniel.
Tony’s home is subject to a small mortgage but after being recently made redundant, his only income is the Newstart allowance. Daniel has very few assets, receives only a small income and suffers from various health problems including bi-polar disorder.
Tony and Daniel are not willing to agree to pay Julie any further funds out of the estate and unfortunately the matter proceeds to a court hearing.
The court awards Julie the additional sum of $350,000 from John’s estate.
Proper estate planning may have prevented the parties from incurring legal costs totalling $150,000, which were also ordered to be paid from the estate.
