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Home | Q & A on 2GB discussing Wills & Estate Law 18/07/13

Family provision claims for inadequate inheritance in a will

Thursday, 18 July 2013


CS       131873 is the telephone number.  In the studio this afternoon, from Turner Freeman, our sponsors of our Legal Matters segment, talking Wills and Estates today, Paul Sant.  Paul, thank you very much for coming in once again.

PS       Thank you, Chris.

CS       Great stuff.  I’ve got a couple of things I want to speak with you about.  Some very interesting cases that have come before Court that show that when it comes to estranged relatives putting a claim in for a deceased estate, sometimes it depends on what Judge you get.  Anyway, we’ll come to that in just a second but I do want to go to some callers who have been waiting in the queue now for quite some time this afternoon.  Michael, you’ve got a question on Wills for Paul.  Go right ahead.

C1       Paul, I’m an executor in a Will, in my parents Will, and my mother was the last to die so basically it was her Will and the problem is that one of my sisters was left $10,000 simply because she had no association with my parents for 35 years.  It went to Court.  My mother left the $10,000 in the Will, it went to the Appellant Court and she got awarded a lot more money.  My problem is that the actual legal fees for her to go to the Appellant Court are 100% more than what she got awarded in Court and I just want to know whether…is there somewhere I can go to have this reviewed what was done?  By the way, the case is still going.

PS       But review what?

C1       The outcome.  You know, it was clear in my mother’s Will that she was to get $10,000 and it was clearly explained why as well as a hand-written letter explaining why she did this and she took it to the…

PS       Went to the Court, she got…the Will was varied, she got another provision and, of course, her costs got paid by the estate.

C1       Yes they did and, as I say, my sister ended up getting $50,000 and the fees came in at $140,000.

PS       But that would be combined fees of the estate…

C1       No, that was just hers because I still had my own fees to pay, out of the estate money.

PS       Well, as far as the fees are concerned, I think you’ve got an entitlement to have them what’s called, taxed.  In other words, they have to submit a formal bill which goes to an assessor and you can go through the bill item by item and then the assessor determines the amount that’s required to be paid.  And you’re entitled to do that.  That’s your right to have a bill of costs assessed and that would be your approach.

C1       Yeah, all in all, the process has left me down quite considerably.  You know, I know the reasoning why my mother chose to do what she did and, at the end of the day, a hand-written letter to support what she had written in the Will and yet, it still went to Court and was over-ruled by somebody who didn’t know anything about it.

PS       Look, what you’re saying to me is displaying what we hear and we see quite often.  And, in fact, the estrangement is the point that Chris mentioned earlier which is the issue here as well.

CS       But for Michael, there’s no other form of review?  Once you’ve gone to the Court, that’s done?

PS       Basically.  I mean, there’s grounds to go to the High Court but it’s impossible…you’ll find it very difficult.

CS       And did that sort of money, $50,000 as opposed to $10,000, you’d never go to the High Court.

PS       Yeah, you wouldn’t.

CS       Yeah.  Alright Michael, thank you very much for your question.  Alright, now this week the issue of estranged claims on estates, very much on the minds of legal practitioners and very much like Michael’s call.

PS       First caller.

CS       Exactly.  Two cases recently and very very similar.  Tell our listeners about them.

PS       They’re actually almost about a year ago but they were very similar in the fact both of them were claims by children who had been, basically left out of the Will.  And the reason being a long period of estrangement.  And we’re talking about, I think in one case was almost about 30 years that the deceased had little or no contact with one of the children for whatever reason.

CS       And that parent didn’t leave that child any money, right?

PS       Correct.  And for whatever the reason was…you know, had no contact with this child etc etc and therefore made no provision.  One…well, both of them decided…sorry, in one case I think there was no…the Court held that, oh well, that’s sufficient, there’s no provision, didn’t vary the Will but it got appealed and another case, and we’re talking about the same money, probably about $600,000 to be distributed between about three beneficiaries, same length of estrangement and, in the other case, the primary Judge basically divided the pool of the assets equally…so that the one that was left out, got left out.  Both of them went to appeal.  In one case, they reduced the…one got reduced to $100,000.  But in the other case, instead of $200,000 which you would have thought would be similar to the other case, they only reduced it to $175,000.  So in one case we’ve got, if you’re looking at one-third each type scenario, $200,00 goes to one…

CS       Yeah, how can you have such a discrepancy with similar facts?

PS       Well…and in one of the Court of Appeal…the bench that was sitting, one of the Judges…the one that reduced the $200,000 to $175,000, he was a descending Judge and said…no, I would have reduced it down to $100,000…so we’ve got this…the fluff.

CS       It’s hard to tell you why when they come to Turner Freeman to say, this is what I think the outcome might be.

PS       But the legislation is written in a…Judges have to take into account a whole bunch of factors and they have to look at it, case by case.  But it’s clear, now, that estrangement does not disentitle you from making a claim.  That’s my view anyway.

CS       Yeah, right.  Ok, well that’s the obvious conclusion despite the discrepancy of amounts, that is the obvious conclusion so if you haven’t been in contact with your parents for 40 years, why not? Have a go.

PS       That reason alone wouldn’t stop you from succeeding in a claim.

CS       Bizarre and, you know, people would have their own idea as to whether that was justifiable or not.  Murray, go right ahead.

C2       Yeah, hi mate.  My mother recently passed away.  The whole of the estate’s worth possibly about $200,000.  Now, because I spent the last nine months caring for my mother of her life, and don’t own my own home.  All I do is have my own car and some furniture, that’s about it.  So she wanted me to have the home so she left everything for me to sort out.  I said but my brother is not happy with that.  He’s decided to contest.  I just want to know whether I’m getting decent legal advice and whether we went the right way.  Because he has his own home which is valued upwards of $750,000 and runs his own business.  My mother’s solicitor says that he wouldn’t have a case to contest anyway but is that true or not?

PS       Just so that we can the facts right.  Mum’s passed away, she’s made a Will, left you the Executor and left you the whole of the estate?

C2       Yes.

PS       And your brother wants to bring a claim?

C2       Yes.  I know fully legally, yes he is fully entitled.

PS       Correct, you can’t stop someone from making a claim, particularly if you fall into the first class being the spouse of the child.

CS       But Murray you want an indication about whether he’s going to be successful or not.

C2       Well, roughly, yeah.

PS       Mate, it’s not something I can give you an answer over the radio.  To give someone an opinion, we need to get full detailed instructions and find out the proper needs of both parties.  Now I keep talking…I often talk about needs when we’re talking about Family Provision Act matters and it looks like you’ve got some similar advice.  The funny thing is, needs, as I’ve been reminded recently, the word “need” doesn’t appear in the Act.  The legislation actually says, with adequate provision for the proper maintenance, education and advancement in life of the person, has been made in the Will.  You read into those words I suppose what you want to.

C2       Yeah.

PS       I’ve often taken the view that, look…you look at the other person, look at their needs, look at your needs and that would give you an indication.  Now, don’t forget the Court still doesn’t…the Court just simply won’t ignore what’s contained in the Will.

C2       Yeah.

PS       They still recognise the right of the testator to dispose of his or her estate as they wish and that’s going to be given some relevance, some weight, alright?

C2       Yeah.

PS       A lot of these cases…the chances are that they’ll get something…that’s the reality.

CS       Alright Murray, let’s leave it there.  Just let me clarify something that you just said then.  Have I got it right that you think that whether you need money more than another member of the family, would entitle you to more?

PS       The needs of an applicant is a relevant factor for a Court to…

CS       Is a relevant factor?

PS       Oh yeah, it’s a factor which the Court has to…

CS       So if his brother had owned his own $700,000 house and he has not even a house, the Court will look at him more favourably than his brother?

PS       It’s the needs of the applicant.  But they’ll also consider the situation of the other beneficiary.

CS       Ok, we’ll come back to Paul soon.  Annual calls in our Legal Matters segment brought to you by Turner Freeman.  Turner Freeman, of course…now Paul is one of the people at Turner Freeman who comes in regularly on the programme to take your calls and we’ll do that in just a second.


8 minutes to 2 is the time.  Our Legal Matters segment brought to you by our good sponsors, Turner Freeman.  And from Turner Freeman today, Paul Sant answering your questions on Wills and Estates.  It’s a very popular segment.  Another caller.  Natasha, go right ahead.

C3       Good afternoon.  I know a lady that passed away and she had a niece and a nephew living with her for a few years but they miss-treat her and they told them to move out.

CS       They miss-treated her?

C3       Yes.  And she told them to move out.  Anyway, she left the property to the charity that…they look after her for 35 years.  Anyway, now they contest the Will, what chance they got?

PS       It’s never as simple as that.  Look, nieces and nephews aren’t within the primary class of people who are entitled to make a claim, such as a spouse and a child would.  So they would have to prove…

C3       It’s a…sorry to interrupt you…it’s her older sister who contest the Will but she was living in there too.

PS       That’s it.  To get into that second group, you’ve got to have shown that you had financial dependency and there it is.  We’ve lived under the same roof, she maintained us or provided financial support by providing a roof over our head, whatever it happens to be, we were dependent upon her.  So that gets them in in making a claim.  Then the Court looks at all these other factors, you know, it looks at your financial circumstances, a whole bunch of things, before the Court makes a decision as to entitlement.  So, once they show that that financial dependency, you can’t stop them from making a claim.  They’re in there.

CS       And they stand a half-decent chance.

C3       Oh ok.

PS       They may get something.  I mean, who knows.

CS       Vicky.  Let’s go to Vicky on line 4.  Vicky?

C4       Yes, good afternoon.  Look, I have a similar situation.  My mother has made a Will stating why my brother isn’t to receive anything.  He hasn’t been in her life for years and years.  She’s written in the Will why?  My question is, I’ve been told that if my mother puts the title of her home in my name, that’s the only way we can probably make sure that he doesn’t get anything.  Is that correct?

PS       Very good and I’ve spoken about this before.

C4       Oh have you?

PS       I’ve probably given some similar advice to tell you the truth…BUT the…I’m assuming your mum’s still alive.  If she transfers the property to you, she can by way of gift of whatever.  If she’s a pensioner, that might affect her pension entitlement but she needs to live for another three years, because there’s this wonderful creature called Notion of the State and Notion of the State says…or what Notion of the State consists of is assets which the deceased may have given away during his or her lifetime in the period three years prior to her death for no good value.  So she’s given away the property, she happens to only survive for about a year, her brother decides to make a claim on the Notion of the State and can, even though the house is in your name, the house falls within that definition of Notion of the State.

C4       Now that she should think about being 85…to do now then?  She’s in very very good health.

PS       Very good health?  Well, if she does it and she survives for three years then she might be right.

C4       That’d be a way of stopping him would it?

PS       If there are no assets, there’s nothing to claim and there’s no Notion of the State, nothing he can make the claim on.

C4       Right, yeah.

CS       It sounds like Vicky is very determined to make sure this works out.

PS       I think so.

CS       Yeah, very interesting.  Al, you’ve only got 30 seconds Al, unfortunately.  Will you be able to tell your story in 30?

C5       Yes.

CS       Ok, go.

C5       Look my Dad passed about 4 weeks ago and we only found out by accidence because he’s in Queensland and his wife never told us about it.  Like I said, we only found out by accident and I spoke to one of my solicitors and I said, look, I want a copy of my Dad’s Will and she said well, you’ve got to ring the person and try and get it but we can’t get in touch with her so we don’t know what to do.

CS       That’s interesting

PS       You can’t get in contact with the executor of the Will?

CS       Don’t know whether there’s a Will, yeah, I’ve only got 10 seconds left but what’s your advice to Al on that one?  Get a solicitor…

PS       Find out…if they know about the father, they might know which lawyer acted for him…you know, maybe contact that lawyer.

CS       Yeah yeah…they’re going to have to be ingenious about it.

PS       Yeah.

CS       Alright, I’ve got to run.  Paul, thank you very much for your time this afternoon.

PS       Thank you.

CS       Paul Sant on Wills and Estates, from Turner Freeman.

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