Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 10 March 2018.
Jim passes away at the age of 85.
30 years ago, Jim had an extramarital relationship for around six years which resulted in the birth of an ex-nuptial child, Larry.
DNA testing proves that Jim is Larry’s father.
Under his will, Jim leaves his house to his wife of 30 years and the rest of his estate to their two children equally.
Jim’s Sydney mansion is valued at $35 million and his superannuation totals $4 million. His bank accounts total $5.5 million.
Larry receives nothing under the will and commences action against the estate.
The court hears that Larry received nothing from his father during his lifetime.
The court also hears that despite Larry’s attempts to contact his father, Jim decided to have no personal contact with him.
The court weighs-up Jim’s moral duty to provide for Larry with Jim’s entitlement to have the “testamentary freedom” to make a will as he saw fit.
The court also considers the size of the estate and the fact that Jim’s wife and both of his other children were unable to demonstrate any financial needs, while Larry showed that he had virtually no assets of his own.
The court states that despite the absence of a social relationship, the estrangement could not be attributed to any fault of Larry’s and in circumstances where Larry was deprived of a paternal association with his affluent father, an order should be made in his favour.
In a record-making decision, the court ultimately grants Larry the sum of $1.75 million dollars from Jim’s estate. The payment is ordered to be paid out of Jim’s superannuation.
The case took two years to reach hearing.
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.
