Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 30 April 2016.
This week’s hypothetical demonstrates the importance of making a will that leaves “adequate” provision for all concerned and is a reminder of how obtaining the right advice, could avoid the costs of a claim on your estate.
John died at the age of 80, leaving an estate valued at around $700,000.
During his lifetime, John had three major relationships.
John had two children namely, Jean and Patricia, to his first wife. Under his will, John’s first wife receives no provision nor do Jean and Patricia.
John then entered into a 20 year de facto relationship with Hong and had a child with her, namely Laura, who is now 13 years old.
Under John’s will, Hong receives $10,000 and Laura receives 50% of the rest of his estate upon attaining 21 years.
John married Junpen three years before he died. Junpen is 36 years of age and she receives the remaining 50% of John’s estate.
John’s will states that Hong is not to obtain any further provision from his estate, due to her “becoming my partner for sinister reasons and to obtain residency in this country” and stating she is “dishonest and lives immorally”.
Jean, Patricia and Hong commence proceedings against John’s estate, seeking further provision.
Hong is also eligible to make a claim as a past “dependent member of the same household as the deceased”.
The court states that John’s comments, as stated in his will, confirm rather than disprove Hong’s entitlement, as there was no evidence that Hong was anything other than a worthy wife and a good mother to Laura.
The court examines the financial circumstances of the plaintiffs and their relationship with John, noting that there had been some estrangement between him and Jean and Patricia.
The court states, that it is not its role to “rewrite John’s will”, but nonetheless orders that Jean and Patricia each received the sum of $60,000 and that Hong receive $100,000.
The legal costs involved total approximately $250,000, most of which are ordered to be paid out of the estate.
