With the ever changing social dynamics around us, it is becoming more apparent in the average Australian family space that people are contesting Wills.

So what does this mean for you?

As you are aware, people are able to decide who will inherit their estate by writing a Will. Unfortunately, people make decisions in respect to their Will that fail to take into consideration their spouse, de facto partner, child or someone who is dependent on them. Nevertheless, the law provides protection to people who have been left out or receive an unfair or disproportionate provision from a deceased estate.

If this sounds like you, you are able to contest a Will and bring a family provision claim against the deceased’s estate in order to receive an adequate provision from the estate.

To bring a family provision claim, you must be an eligible person e.g spouse, de-facto, child or a dependent of the deceased. A grandchild is not an eligible person unless they were a dependent of the deceased.

You also have only 12 months to make a claim from the date of the deceased person’s death, so it is critical to obtain legal advice as soon as possible.

Contesting a will: what the court considers

Should you be an eligible person, the Court will then consider the following matters;

1. Your relationship with the deceased;
2. Your financial resources and needs together with the financial resources and
needs of other beneficiaries;
3. The size of the estate;
4. Any contributions made by you to the deceased during their lifetime;
5. Any gifts received by you from the deceased during their lifetime;
6. The financial circumstances of your partner (if you have one);
7. Your dependency on the deceased
8. Your age and health;
9. Your character and conduct towards the deceased;
10, Any other matter the Court considers relevant.

If you believe that you are an eligible person and have been left out of a Will or have not received an adequate provision, you may be able to contest the will and obtain more than you think.

Equally, if you are an Executor and you are required to defend a family provision claim, we can assess your claim and provide you with expert advice with an aim to settle your matter swiftly in order to minimise the costs incurred by the estate.

Our team has extensive experience in estate litigation and whether you believe you are eligible to make a claim or require advice in defending an estate, we can assist you.

If such is the case or if you require further information in relation to the above, please contact Ian Agamalis or James Hatzopoulos at Rostron Carlyle Lawyers on (02) 9307 8900 or by email to [email protected] or [email protected].

What does it take to make adequate provision for proper maintenance and advancement in a will?

Is it a matter of moral duty or community standards?

The answer to those questions depend upon a range of factors.

In Steinmetz v Shannon [2019] NSWCA 114, the appellant was the second wife of the deceased, who left an estate of approximately $6.8 million. The estate consisted of real estate, a superannuation policy, a real estate business and a liquor outlet business.

By his will, the deceased left the appellant an indexed annuity of $52,000 for the remainder of her lifetime. The remainder of the estate was left to the respondents, who were the independent adult children of the deceased’s first marriage.

The will contained the following provision:

“IT IS MY EXPRESS WISH that my Estate remains a whole for my children and grandchildren. I have drafted my Last Will and Testament in the above manner as I believe that it enables my wife to live comfortably for the rest of her life without having to dispose of the assets that I have worked my whole life for.”

The will was made hurriedly in circumstances where the deceased was about to undergo surgery which he feared he might not survive. Instructions were in fact given to the deceased son in law who was a solicitor.

The trial judge dismissed the appellant’s family provision claim. The widow appealed.

The principal issue on appeal was whether the annuity was adequate provision for the appellant’s proper maintenance and advancement in life.

The members of the Court of Appeal all approached the issues slightly differently, but unanimously held, allowing the appeal:

Adequate provision for a proper annuity is not limited to the provision of financial necessities.

Section 59 of the Succession Act (NSW) is to be applied according to its terms, and not confined by notions of reluctance to interfere with freedom of testation.

Insofar as it is necessary to resort to concepts of “moral duty” or “community standards” as a measure of proper provision, the former is preferable.

To leave a 65 year old widow, who is well capable of managing her own affairs, reliant for the rest of her life on quarterly payments by the children of her deceased husband’s first marriage, with one of whom there have been historical tensions, rather than placing her in control of her own resources, is not an appropriate form of provision.

The appellant widow was awarded an amount of $1.75M in lieu of the annuity provided under the will.

In the context of the relationship and marriage, taking into account the sustained and substantial contributions the appellant had made to the welfare of the deceased; the size of the estate; that there was no-one else responsible for the maintenance of the appellant; the appellant’s reasonable wish to relocate; and the absence of competing claims; the annuity provided to the widow under the will was not adequate provision for the proper maintenance and advancement of the appellant.

In relation to the express provision in the terms of the will, Brereton JA said,

“A wish to preserve “the assets that I have worked my whole life for” for the benefit of his children and grandchildren does not reflect a careful balancing of competing claims. The testator allowed this wish to preserve his estate intact to so dominate his decision-making as to fail to have sufficient regard to his obligations to his dutiful wife of 28 years.”

In finding the annuity inadequate, Brereton JA said,

“to leave a 65 year old widow reliant for the rest of her life on quarterly payments by the children of her deceased husband’s first marriage, rather than placing her in control of her own resources, is in this day and age not an appropriate form of provision for a widow who is well and truly capable of managing her own affairs and when there have historically been tensions between her and at least the first respondent. However reliable the respondents might be, this form of provision effectively obliges her to have an ongoing relationship with them, and to trust them to perform the obligation, and does not afford her the independence and self-reliance which, according to today’s community standards, a widow should have. It is not only rigid and paternalistic, but demeaning and controlling.”

The decision highlights the broad approach a court will take in such matters. What may at first glance be adequate and proper provision, may on careful analysis of all of the facts, be quite inadequate and altered.

In ideal circumstances, wills should be made after careful consideration of all of the relevant facts, with sound advice and guidance.

Contact us for any assistance in making a will or in getting advice on whether a will makes proper and adequate provision.

What happens when the intentions of the testator are not reflected in the will?

This situation can arise from many reasons-but more commonly from poor drafting or miscommunication.

This arose in Rose v Tomkin & Ors (2017) QCA 157, where the Court had to consider the terms of a will dealing with the residuary estate.

The current rectification power is contained in s 33 of the Succession Act 1981 (Qld) which provides:

S.33 Court may rectify a will

(1) The court may make an order to rectify a will to carry out the intentions of the testator if the court is satisfied that the will does not carry out the testator’s intentions because—

(a) a clerical error was made; or

(b) the will does not give effect to the testator’s instructions.

In order that the power to rectify a will be enlivened under s 33 of the Act, a party is required to satisfy the Court that the Will did not carry out the testator’s intentions because the terms of the Will did not give effect to their instructions and wishes. That intention must be examined as at the date of the will, not the date of death.

The legal principles in respect of the rectification power in s 33(1)(b) of the Act may be summarised as follows:

• The Court must ascertain the testator’s intention, that is, the actual intention of the testator reflected in the instructions given by the testator, not what would probably have been the intention in the circumstances that eventuated.
• The Court must construe the provision of the will sought to be rectified.
• The Court is required to compare the relevant provision of the will properly construed with the testator’s intention as ascertained.
• The Court must be satisfied the relevant provision of the will does not carry out the testator’s intentions because it does not give effect to the testator’s instructions and that rectification in the terms sought would give effect to those instructions.
• The Court must be so satisfied on the balance of probabilities, on clear and convincing proof.

The Court found after reviewing the evidence before it, as to the instructions given for the will that “the Will did not carry out Ms Jones’ intentions because it did not give effect to her instructions that her half interest go to her children. The Will was only capable of achieving the result that her children received a half interest in the event that her partner’s will was (and remained) in the same terms. The Will as drafted was not capable of guaranteeing that a half interest pass to them. But it is evident that Ms Jones’ instructions were to safeguard her children’s inheritance without qualification. That is consistent with the advice given to her by her solicitor to sever the joint tenancy.”

Having found that there was clear and convincing proof that the will did not carry out the testatrix’s intentions because it failed to give effect to her instructions, the Court ordered that the will be rectified

If you have any queries in respect of these matters please do not hesitate to contact us.

The purpose of drafting a will is to ensure that your assets are distributed according to your wishes when you pass away. As such wills and estate planning may appear straightforward particularly since will kits can be purchased from your local newsagent; However, these do it yourself (DIY) wills may result in legal issues being overlooked with unforeseen or unintended results.  Such results may lead to costly, stressful and complicated disputes which could have been avoided had the will maker obtained professional advice.

A recent example of a will which had unintended consequences is the case of Masci v Masci [2015] QCA 245. The facts of the case can be summarised as follows:

• Mr and Mrs Masci had no children together, but both had children from earlier relationships;
• Together they drafted a joint will which essentially provided that:
  • one of Mr Masci’s children and one of Mrs Masci’s children were appointed as joint executors;
  • the survivor of them to live in the family home until their death; and
  • the distribution of the assets on the death of the survivor, so that Mr Masci’s children would receive 50% of the assets and Mrs Masci’s children would receive the other 50%.

• On 7 February 2012 Mr Masci passed away;
• following Mr Masci’s death Mrs Masci sold the family home on the basis that the home was owned as joint tenants and as such she automatically became the sole owner of the property on Mr Masci’s death; and
• Aside from the sale of the family home, disputes also arose surrounding the terms of the will and the intention of the parties.

To resolve these disputes, the Court had to decide whether Mr and Mrs Masci intended to:

• make a mutual will and create a binding contract between themselves not to change their wills; and
• sever the joint tenancy of their house, with the effect that they would own the property as tenants in common and that their interest would form part of their estate and accordingly be dealt with under their will.

The Court held that there was an intention to create a mutual will, and that the joint tenancy had been severed. This meant that Mrs Masci did not inherit Mr Masci’s interest in the family home automatically, and Mr Masci’s interest was required to be dealt with under the terms of the joint will.

This proceeding resulted in two court cases spanning three and half years and costly legal fees all because Mr and Mrs Masci in drafting their wills did not take into account the effect of death on the joint-ownership of the family house.

In another recent case, Yu v Yu & Ors [2015] QSC 373 and following on from the decision in Re Yu [2013] QSC 322, which found that Mr Yu’s will consisted of a series of notes stored on an iphone, the court was required to determine whether $259,000 in insurance proceeds fell within Mr Yu’s ambiguous use of the word “cash”. If these insurance proceeds were cash it would form part of the remainder of the cash to be divided amongst the five beneficiaries; however if it was not cash it formed a part of the residue which was left to the executor. The court ultimately found that the $259,000 was not cash and therefore were not available for distribution to the five beneficiaries.

The lesson to be learnt from Mr Yu’s case is that the price of having a professionally drafted will is minor when compared with the many thousands of dollars that were likely expended by the parties in bringing the two applications to Queensland Supreme Court, the delay in finalising his estate and possibly the unintended consequence of Mr Yu not considering the distribution of his life insurance and superannuation funds.

Other issues which arise in DIY estate planning commonly include:

• inappropriate executors ;
• ambiguous terms;
• provision for pets rather than leaving the pet to a caretaker;
• putting impractical or onerous conditions before a beneficiary can receive their inheritance;
• incorporating provisions dealing with life support and care whilst in a coma;
• incorrect or non-existent provision for distribution of super and the transfer of powers as appointor under a trust deed;
• incorrect execution and witnessing of the will; and
• failures to consider issues with jointly held assets and their distribution;

As lawyers, we can guide and assist you in making your will and in dealing with difficult and complicated decisions to help avoid disputes and expensive court proceedings.

If you are interested in either having your estate plan reviewed or would like to make a will please contact us.