Published in The Coffs Coast Advocate on 31 January 2015.
Jane’s son Jim has had a drug problem for many years and his addiction has become worse since the death of Jane’s husband and Jim’s father, Roy. After Roy’s death, Jane talks to her friend about making a new will and leaving Jim out. Her friend advises Jane that if she leaves Jim one dollar, he cannot challenge the will.
Jane goes ahead and makes a “home-made will” that leaves Jim just one dollar and leaves the rest of her estate to Jim’s four children equally. She also states in her will that she wishes for her grandchildren to benefit from her estate because she is concerned that Jim will waste any inheritance that he may receive on drugs. Jane gives the will to her eldest grandson, Jay whom she appoints executor.
Jane later remarries. She is still happy with the contents of her will and decides to leave it as is. Many years pass and after being widowed a second time, Jane dies leaving a large estate.
Jay takes Jane’s will to a solicitor specialising in these types of matters. He is advised that leaving someone a dollar in a will is not enough to stop them successfully challenging a will. The test that the court imposes is whether the “eligible person” has received “proper and adequate provision”.
Jay is also informed that because Jim has been successfully rehabilitated from his drug addiction for some years, the statement in the will regarding his drug use would not be of any assistance to Jay in defending the provisions of the will and could actually strengthen Jim’s position.
When the solicitor learns that Jane had married after executing the will, he informs Jay that the will, in any case, was effectively revoked by the marriage and that the estate will need to be administered pursuant to the “rules of intestacy”. This means that despite Jane’s wishes, Jim receives the whole of her estate and Jay and his fellow grandchildren receive nothing. Because none of the grandchildren were “dependent” upon Jane during her lifetime, they are “ineligible” to make any claim on her estate.
