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Case Study 1
When a man died, his former wife made a claim on his estate. The man had left it all to his distant cousins, as he had no closer relatives. The woman had divorced him many years before his death. She had made a divorce settlement under theFamily Law Act by which each party agreed that they would have no further claim on the estate of the other. However she bought her claim under another piece of legislation, the Family Provision Act.
Turner Freeman defended the executor of the will against the former wife’s claim. Our argument was that she had released the deceased from any claim under the terms of the family law settlement. The court held that she could not make a claim on the man’s estate. The decision was upheld on appeal, and the executor won a costs order against her.
Case Study 2
A man died leaving his adult son out of his will entirely. The man had never married his son’s mother and had never lived with his son. He had left his whole estate to a friend and her children. The administrator of the estate argued that the son was not entitled to anything because he had little or no contact with his father.
Turner Freeman took the son’s claim to court. We argued that the amount of contact with the father should not be held against the son. It was due to the circumstances in which he was born, he was not told who his real father was until he was much older, and his father had not encouraged contact. The court held the son should not be prevented from bringing his claim. As a result he was awarded a substantial portion of his father’s estate.
Case Study 3
A man who died in an air crash was survived by his wife, from whom he was separated but not divorced, and by a partner in a recent de facto relationship. The man had made his will several years before his death, and his separated wife was still the executor. His will left his whole estate to her, on a verbal agreement that she would hold it on trust for their teenage son. Shortly after making his will, the man began the de facto relationship. The bulk of his estate was a half interest in his home, which he owned jointly with his de facto partner. This partner claimed the whole of the estate including his half of their home.
Turner Freeman defended the separated wife against the claim. We argued the de facto partner did not have sufficient need for the estate to provide for her, that she had the funds to buy the deceased man’s half of their home at market value, and that the son was an “eligible person” to inherit it. The Court of Appeal agreed, overturning an earlier judgment and dismissing the de facto partner’s claim.
Case Study 4
A husband died, leaving behind his two adult children from his first marriage, and his second wife, who also had children by a previous marriage. The couple had made identical wills. On the death of one partner, their estate was to be left to the other. On the death of that partner, the two sets of children were each to receive half the estate. But soon after the husband died, his second wife changed her will to leave the whole of her estate, including what she had inherited from him, solely to her own child.
Turner Freeman was not involved in making the husband’s will, but helped his children to bring proceedings. We argued that as the couple had made mutual wills, the wife was bound in contract, and could not lawfully change her will after her husband died. The children produced evidence of conversations with their father in which he had expressed his understanding that she could not do so. The case went to the Supreme Court and the Court of Appeal, which dismissed the claim “with regret”. It held the children’s evidence was simply not enough to establish a contract that would stop the wife changing her will.
You can see how important it is to get good legal advice when making your will. It must be drafted properly to reflect your intentions. Had the couple made a contract in conjunction with their wills, each could have protected the interests of their own children, so the surviving partner could not cut out the other partner’s children.