Australia: Where theres a Will, theres a way? Contesting and defending NSW wills and estates

Disputes over Wills and estates are becoming more common with an increase of over 50% of cases appearing in court lists over the last 10 years.

Even the estate of a treasured Australian, Bart Cummings, is fair game; there are currently two proceedings before the court challenging the division of the Cummings estate worth over an estimated $60M, one by his daughter and the other by his son.

Often, the dispute arises when there is a blended family and ex-spouses, children, step children and even estranged children feel that the terms of the Will or the intestacy rules have failed to adequately provide for them.

Blended Families and the Ex Factor

When a marriage breaks down or a new spouse comes 'on the scene' it can cause some problems when it comes to distribution of the estate, especially when there are children (even adult children) involved.

Judgment was handed down recently in a matter in which a 65 year old man died intestate leaving an estate of more than $5M to his adult daughter. His former wife (and the mother of the daughter/defendant in the case) sought provision out of the estate. That all sounds standard in these types of cases, I realise, but in this case the separation had occurred more than 25 years prior and after a cohabitation of only 18 months!

Most people would not think that the 'ex factor' would play any role in this estate, but the former wife was awarded provision by way of a legacy of $750,000.

An earlier matrimonial financial settlement was taken into consideration by the Judge but he found that the marriage and its breakdown had an enduring impact on the plaintiff and had resulted in a substantial detrimental change in her circumstances. While the former wife struggles, the deceased prospered, partly (the Court found) due to the former wife assuming responsibility for the care of their daughter (the defendant). A "clean break' principle was not paramount and a former wife finding herself in the predicament of insufficient financial resources, especially where the 'estate' at time of the matrimonial financial settlement was significantly less than the deceased estate, was found to be the kind of circumstance warranting the making of an application and award for provision.

The Judge said: "The moral obligations arising out of marriage have not been fully discharged by the matrimonial financial settlement...because the available resources were then insufficient to do so".

The deceased estate was significantly more than the matrimonial 'estate' and even with the provision of $750,000 to the former wife ample estate would remain for the defendant (in excess of $4,250,000).

Case: Lodin v Lodin; Estate of Dr Mohammad Masoud Lodin [2017] NSWSC 10.

Estrangements and damaged relationships

Another Supreme Court case saw twin brothers arguing over the estate of their late mother. One twin, Lennie, was close to his mother, living with her for over 20 years and providing care and support. The second twin, Rodney, had a strained relationship with his mother after he had served time in jail for drug crimes and she took out an apprehended violence order against him due to threats of gun violence against her. She had written in a previous Will that she had not made provision for him as they had not had a mother/son relationship for approximately 40 years, yet in a later Will she split her estate equally between her two sons.

Lennie contested the Will and argued that he was entitled to a greater share of the estate and the half split was unfair. He was upset that Rodney should get an equal share of the estate despite the fact he was estranged from the family, giving evidence that Rodney had not visited in years and did not even go to the funeral of either of their parents.

The relationship of each of the twins was an important consideration for the Court, but just because one twin was closer to his mother than the other, it did not automatically mean that he was entitled to a bigger share of the estate. The court was not there to reward Lennie's good conduct over the years he assisted his mother or to punish Rodney for the failings in their relationship. The decision for the court was whether Lennie had received adequate and proper provision from the estate.

After examining the financial circumstances of both twins, the court held that the half share of the estate was an adequate and proper provision. The Judge said: "The legislation does not justify orders to remedy perceived unfairness or hurt feelings".

Case: Meres v Meres [2017] NSWSC 285.

Do you need help to contest or defend a Will and estate? Quick Quiz:

An application must be made within 12 months of the date of death (extending the time can be difficult and requires a court order).

Can I apply?
Those eligible to apply include wives and husbands, de facto partners, children, former wives and husbands, dependents living in the same household, dependent grandchildren, persons in a close personal relationship.

Can I defend?
The executor of the estate can defend a claim (or a beneficiary depending on the circumstances of the Will).

What happens?
The court will take into account a long list of factors when determining whether the applicant has received adequate provision from the estate. The court's objective is to ensure that an eligible person's maintenance, education or advancement in life is properly provided for.

Usually, the costs of a successful application or defence will be paid out of the estate.

Mediation is compulsory before any hearing, often meaning that cases resolve without the need for witnesses to appear in court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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