When making a will, should you be “fair”?

Should you treat your children equally? Will this minimise disputes?

Fairness in inheritance law is a peculiar beast, and is not as important as you might think.

Justice Palmer in a case[i] from 2009 stated as follows:

It is useful to remind oneself of the parable of the labourers in the vineyard. Those who worked the whole day complained, not because their agreed wage was inadequate, but because those who worked only part of the day received the same wage and were therefore treated more generously. The moral of the parable is: what is fair and adequate to start with does not become unfair and inadequate just because someone else has been treated differently.

Let that sink in a moment.

…

I don’t know your kids, and sure, they might feel better (if possible, at such a grim time) being left equal shares of your estate, but if one of them comes to me with the will and asks if what they’ve been left is “fair”, I will tell them that fairness doesn’t really matter; what matters is whether it is adequate and proper.

Adequate?

Proper?

Many a judge has attempted to interpret and explain these words that frequently appear in inheritance legislation and law.

The reason these words are so important is because the big question is not whether a person has been treated fairly, but whether a person has been left with adequate provision for his or her proper maintenance education and advancement in life.

But what does that even mean? What’s with all these special words, concepts and parables?

And that’s exactly why your child, or maybe you as a will maker or disgruntled beneficiary, are coming to me.

Our job, will be to do what the Court would do if the matter proceeded there, that is, attempt to determine whether or not someone has been left without adequate provision for his or her proper maintenance education and advancement in life, taking into account all of the circumstances of the case, such as:

  • the potential claimant’s financial position;
  • the potential claimant’s future needs;
  • the potential claimant’s relationship with the deceased;
  • whether there was any estrangement in the potential claimant’s relationship with the deceased (and if so why and were attempts made to reconcile, and if so by whom);
  • whether the deceased provided for the potential claimant during his or her lifetime (and whether this could have been adequate and proper);
  • whether the potential claimant supported the deceased financially or otherwise during the deceased’s lifetime;
  • the size of the estate; and
  • the strength of competing persons’ claims.

And so fairness is not usually about equality. What is adequate and proper may in fact result in equal shares between beneficiaries, but that’s not usually the case. An equal share may well be adequate and proper for one, but not adequate and proper for the other, when taking into account the bigger picture and assessing the factors mentioned above.

In another case,[ii] Justice McMillan said as follows:

The court’s function is not to ensure a fair distribution of the testator’s estate or to achieve equality amongst various claimants. The court’s role goes no further than making adequate provision for the proper maintenance and support of an applicant.

So if you’re a willmaker trying to minimise the likelihood of claims on your estate, or a beneficiary who is unsure whether or not their share of the estate is fair, unfair, adequate and proper, or inadequate and improper, let’s chat.

And if you don’t want to proceed after our initial obligation-free chat, at least you will know where you stand and won’t be charged a cent.

Sound fair?

[i] Carey v Robson; Nicholls v Robson [2009] NSWSC 1142, [58].

[ii] Re Williams; Smith v Thwaites [2017] VSC 365 [22] citations omitted