Published in the Coffs Cost Advocate on 2 May 2015
During the course of a 25 year marriage, Jim and Jane have 4 children.
When their marriage breaks down, Jim and Jane engage in contested family law proceedings and their two daughters provide evidence in support of Jane.
Jim’s relationship with his two daughters deteriorates and they have no contact after the conclusion of proceedings.
Jim makes a will 20 years later, disinheriting his two daughters, stating that they have been deliberately excluded because they intervened in the family law proceedings in support of their mother.
Jim’s will leaves 85% of his estate to his eldest son and the remaining 15% to his youngest son. He appoints his eldest son as his executor.
Jim dies two years later, leaving an estate of around $3 million.
Jim’s daughters commence court action, claiming that they are entitled to a portion of their late father’s estate.
In cases such as these, the court considers whether the deceased made “proper provision for the maintenance, education or advancement in life” of the claimants.
The court considers the whole of the circumstances, including the relationship that the claimants had with the deceased and whether the claimants can demonstrate need.
The court found that there had been a 21 year long estrangement between Jim and his daughters.
The court found however that Jim’s daughters were not solely to blame for the estrangement and that they were not aware of Jim’s regret over not seeing them or his grandchildren.
The court also found that Jim’s eldest son had provided Jim with financial support during his latter years.
The court carefully examined the financial circumstances of Jim’s daughters and found that they had demonstrated sufficient need.
Ultimately, the court ordered that each of Jim’s daughters were to receive 15% of the estate, reducing his eldest son’s share from 85% to 55%.
The substantial legal costs that had been incurred by the parties, were ordered to be paid out of the estate.
This case is a reminder that even in circumstances where parties have been estranged for many years, a claimant can be successful and it is important to properly consider the contents of your will in order to protect your estate from costly litigation.
