As many of you are aware, I write a weekly column in the Saturday Advocate (and yes, I actually write them).
I recently notched-up my 200th article and I thought I’d share a few of my favourites. A “greatest hits” if you will…
Remember, if someone pinches your paper, or it is overly soggy, the columns are available on the Advocate website and I also upload all of them to the Ticli Blaxland website.
A Will and a Way
Cecil, a 56-year-old farmer, tells his wife Bessie that he is taking his tractor to do some work about 2 km from the homestead and that he will be back by sunset.
Unfortunately, Cecil is involved in an accident whereby the tractor rolls over and his leg is pinned beneath the left rear wheel.
Bessie goes looking for Cecil and finds him under the tractor. She runs to the nearest farmhouse and they drive to town to find help.
In the dark and in the rain, help arrives and the tractor is jacked-up, to release Cecil. They take him to hospital after being trapped for 10 hours. Cecil suffers a substantial loss of blood and a severely fractured leg.
Cecil passes away the next day.
When the tractor is examined, it is discovered that Cecil had scratched a very brief and simple “will” into the paint of the left mudguard with his pocketknife.
The “informal” will leaves the whole of his estate to Bessie, who would otherwise share his estate with Cecil’s children to a previous relationship on the basis of an “intestacy”. This means that the homestead would need to be sold and Bessie forced to relocate.
Bessie applies to the court to have the tractor’s mud guard declared to be valid will.
The court finds that although the “will” was not properly executed and witnessed, Cecil had intended it to form his will.
The court ultimately approves the will and Bessie receives the whole of Cecil’s estate.
The substantial costs and stress involved could have been avoided if Cecil had made a will with his solicitor.
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.
Wife Not Excused From Spending Husband’s Money
When John, suffering dementia and incapable of managing his affairs, is admitted into a nursing home, his second wife of 20 years, Jane, sells all his property.
At John’s expense, Jane buys an expensive car and jewellery, enjoys holiday cruises with her side of the family and gambles.
With John’s money, Jane also purchases real estate in her children’s names with a view to building a granny flat on the property.
When John dies, his two children discover that although they are each entitled under his will to a quarter of the residue of his estate, his estate now consists of very little. They commence proceedings against Jane.
The court hears that 10 years earlier, Jane was appointed as John’s enduring power of attorney. The power of attorney did not contain a provision that allowed Jane to confer benefits on herself.
In her defence, Jane says that the relationship of husband and wife means that she has no obligation to account to anyone.
The court states that the power of attorney was executed for the purpose to allow Jane to manage John’s estate for his benefit during his incapacity and that any benefit that she might receive should not be more than “incidental”.
The court also states that Jane could have applied to the court, during John’s lifetime, to manage his affairs in a way that provided benefits to her.
The court ultimately finds that Jane is liable to account to John’s estate for mismanagement of his property and with the assistance of a forensic accountant, orders Jane to repay over $1 million to his estate. The funds used to purchase property in Jane’s children’s names can also be “traced” to satisfy the judgement.
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.
Marriage, Divorce and Your Will
David makes a home-made will before he marries Rebecca. The will is properly executed and witnessed.
David’s will leaves half of his estate to Rebecca and the other half is left to his two children from a previous relationship.
David appoints one of his children, Sam as his executor. David informs Sam that he has made a new will and informs him of its whereabouts.
Many years later, when David passes away, Sam locates the will and takes it to a solicitor. The solicitor notices that the will is dated before David’s marriage to Rebecca.
The solicitor advises Sam that David’s marriage to Rebecca revoked Sam’s appointment as executor and revokes the gifts to him and his siblings. The provision for Rebecca, however is still valid.
Sam is advised that the half of David’s estate that was to be left to the children, will now be dealt with under the rules of intestacy. This means that half of David’s estate will be distributed as if he had not made a will at all.
The size of David’s estate, means that his children will receive nothing and Rebecca receives the whole of his estate.
The solicitor advises Sam that if his late father had included a clause in his will, to the effect that it was “in contemplation of marriage”, that the will would have been valid.
Sam and his solicitor discuss the advantages and disadvantages of making a family provision application, contesting David’s will.
It should also be noted that similar issues can arise from a divorce. A divorce revokes any provision made for a former spouse, unless it is specifically noted in the will.
It is important to update your will if you are married or divorced and to get proper advice.
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.
This article is intended to be for information and educational purposes only and cannot be relied upon as legal advice. The information may not apply to your circumstances or to your particular situation. If you need specific advice or you have any questions, we welcome you to contact us directly.
