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Successful Challenge By A Son Who Had Been Left Nothing In his Mothers Will.
In a recent case the mother was a widow. Her immediate family consisted of her son, her daughter and two grandchildren. The mother left her entire estate including her mobile phones, personal goods, home and car to both her grandchildren and her daughter. She did not make any provisions for her son. The son had a medical condition that was such that he had virtually no earning capacity.
The son applied for a Family Provision Order under Chapter 3 of the Succession Act 2006, based on the contention that the mother had not made adequate provision for him in the will. The son also filed an additional claim for 3,219 ordinary shares in Westpac Banking Corporation which were held in the joint names of the son and the mother. He argued that those shares did not form a part of the property of the estate and that he should be the sole owner of them.
The Court had to first decide whether the son was an “eligible person” to apply for a Family Provision Order. In this case there was no dispute about that because children of a deceased person are within the classes of “eligible persons” specified in the Succession Act. The Court also had to decide whether adequate provision for proper maintenance, education, or advancement in life, of the claimant had been made in the will. The son bore the onus of persuading the Court that adequate provision has not been made for him.
The Court concluded that the provisions made for the son in the will were inadequate for his proper maintenance or advancement in life, and ordered that the son be given a lump sum of $55,000 out of the estate. In coming to this conclusion the Court considered the son’s medical condition. This was balanced with the Court’s view that a parent is not responsible for the entire provision and upkeep of adult children. In the Court’s view, while there is generally no such responsibility, in this case the mother should have provided the claimant a “modest” lump sum to provide for some of the needs of the son of which he had given evidence.
The Court also concluded that the shares held in the names of the son and the mother did not form a part of the property of the estate and therefore the son could keep them. This is consistent with the general rule that jointly held property passes to the surviving joint owner and is not considered as part of the estate property. The judgment in this case demonstrated that generally will makers do not have to provide for adult children but they must consider whether their children have special needs.
Informal Wills: Did a message contained in a Word document constitute a valid will?
Mr D was a successful restaurateur. He owned properties in Paddington, Queens Park and Surry Hills. Mr D was one of eight children. He and two of his brothers owned a chain of acclaimed restaurants. The brothers shared a superannuation fund and some joint bank accounts. Their partnership was worth $3.2 million when Mr D sadly took his own life in 2010. No will could be found.
It was discovered that on his laptop computer there was a document entitled “Will.doc”. Mr D’s parents and his brothers went to Court over whether “Will.doc” was a legal will. In some circumstances a Court can declare a document to be a valid will even though it does not meet the requirements of one. In Mr D’s case the Judge decided that “Will.doc” did express his “testamentary intentions”.
The Judge considered comments Mr D had made to co-workers and family members about “Will.doc”.
A technical examination of the laptop indicated that no one other than Mr D had accessed the document. The Judge ruled that “Will.doc” was valid even though it was not signed or even printed out.
So why bother with a will? Well the problem with informal wills is the potential they create for uncertainty, delays, bitter disputes, legal costs and the time and effort to which the potential beneficiaries must go to try to get justice. Informal wills are much easier to challenge and the cost of court proceedings will often fall back onto your loved ones. If you have any questions about the validity of your will, call Fox & Staniland today.
Statutory Wills: Estate Planning for Persons with a Disability
Many people lose the ability to make or change their wills due to physical or mental disability. As a result, their assets can end up in the hands of people that they were not in-tended for, such as an estranged relative or the government.
If you have a legitimate interest in the affairs of an incapacitated person, you can apply for a “Statutory Will,” which is a will that is made, altered or revoked by the NSW Supreme Court.
On such an application, the Court will ask the question: “If the incapacitated person had the ability to make or change the will themselves, what would that will be?”
In one case, the brother-in-law of a 93 year old woman successfully applied for a Statutory Will making him the executor and beneficiary of her estate. The woman’s original will left her assets to her sisters who predeceased her. Unfortunately by this time, the woman was suffering from dementia that prevented her from changing her will. Based on evidence of their close family relationship, the Court decided that she would have preferred her estate go to her brother-in-law rather than to the government and made orders for a statutory will.
Statutory Wills can also be made for people who have never had the ability to make their own wills. For example, an application was brought on behalf of an 11 year old boy who suffered from Shaken Baby Syndrome, which left him with severe brain damage. He was awarded $50,000 in victim’s compensation and placed in the care of DoCS. To prevent this money from going to the boy’s parents, the Court granted a Statutory Will naming his sister as the beneficiary.
If you require advice on Statutory Wills, contact us for advice.
6 Things to Know about Advance Care Directives
Estate planning is not just about what happens to your assets after you pass away. For many people, it is just as important to make arrangements about their medical treatment.
An ‘advance care directive’ (sometimes known as a ‘living will’) is a document containing instructions about end of life care, including consent or refusal of specific medical treatments.
In one case, the Supreme Court upheld the advanced care directive of a man who refused blood transfusion and dialysis treatment due to his beliefs as a Jehovah’s Witness. The Court honoured his wishes, even though the lack of treatment would lead to the worsening of his condition.
The case told us six important things to remember about advance care directives:
- The advance care directive only comes into play when you lose the capacity to make decisions about your medical treatment;
- An advance care directive can only be made by a capable adult, acting freely and voluntarily;
- To be upheld, the advance care directive must be clear and unambiguous about the medical treatment and apply to the clinical circumstances at hand. If the document is unclear, decisions will likely revert back to medical professionals or your enduring guardian;
- Decisions to refuse medical treatment do not have to be considered reasonable. Provided the document is clear, the court will respect the wishes of the person, regardless of whether they are based on moral or religious grounds;
- You may choose to prepare an advance care directive in an enduring guardianship appointment document; and
- Advance care directives are not absolute. If the professionals are not sure if the advance care directive applies, or if treatment is necessary to save the life of a viable unborn child, the ‘emergency principle’ may apply, allowing the doctor to treat the patient in accordance with his or her clinical judgement.