Published in the Coffs Cost Advocate on 14 February 2015
Joy and John have lived together in a de facto relationship for more than 20 years.
John has made a will, appointing his daughter from a previous relationship, Judy as his executor. John’s will leaves his motor vehicle, his household belongings and the sum of $50,000 to Joy. The will also grants Joy the right to reside in John’s home and sets aside a further $20,000 to pay for rates, insurance and the costs of keeping the home in reasonable repair. The will further states that if John’s home is sold, Judy has the “discretion” to use the proceeds of sale for Joy’s benefit. John leaves the rest or “residue” of his estate to his four daughters.
The will then states that when Joy dies, the proceeds of the sale of his home are to be distributed between John’s daughters.
When John dies at the age of 89, he leaves an estate valued at approximately $700,000 which includes his home valued at approximately $360,000.
Joy, aged 91, is concerned that if she needs to relocate, Judy will not use her “discretion” to provide her with the necessary funds.
Joy commences court action, seeking a “family provision order” for further provision from John’s estate.
The parties cannot resolve the matter and the dispute proceeds to a hearing.
The court considers Joy’s life expectancy and her likely future expenses. The court also looks at the “station in life” of John’s daughters and their “competing claims”.
Joy’s barrister argues that she should receive John’s home “absolutely” and Judy’s barrister argues that Joy should not receive any further provision.
The court ultimately finds that the provision that John has left for Joy in his will is “neither adequate nor proper”.
The court awards Joy a lump sum of $100,000 together with the use of John’s home for life and should Joy require alternative accommodation such as a position in a nursing home, the court orders that John’s home can be sold and the net proceeds used to fund accommodation for Joy for life.
The total legal costs incurred by the parties exceeds $70,000, which were paid from John’s estate.
Estate planning for blended families can be difficult and this case highlights the importance of leaving your current partner “proper” provision.
