The ability to choose who you leave your property to in your Will has been tempered by legislation that permits eligible persons (as defined by legislation) to apply to the Court for a greater share of a deceased person’s estate where “adequate” provision has not been made for their “proper” maintenance, education and advancement in life”.
A recent NSW decision upheld the wishes of a Willmaker and dismissed the application of two children seeking a greater share of their mother’s estate.
The Willmaker died in 2014 leaving a Will made a little over one month before she died. The Willmaker was survived by her two adult children. Under the Will, the Willmaker left:
- her daughter half of her personal effects and $250,000;
- her son half of her personal effects and $190,000;
- a friend and carer, her household contents (not including personal effects) and the right to use her car for one year from the date of her death; and
- the rest of her estate was left to the proprietor of a complementary healing and training association.
The Willmaker died leaving an estate worth $1.1 million. Her children contested the Will.
In the year preceding the Willmaker’s death when she was diagnosed with a terminal illness she had assets in the order of $2.2 to $2.3 million but she had gifted $800,000 to the proprietor of a complementary healing and training association and $60,000 to her son before her death.
The Court found in evidence that the Willmaker had “carefully considered how she should dispose of her estate. She weighed up the competing considerations for her bounty” and she had in any event made provision for her children in her Will albeit her children wanted more. The evidence revealed that the Willmaker had discussed her testamentary wishes with both of her children before she died and asked each of them to respect her wishes and not challenge her Will.
The question for the Court was whether the provision made for the children in the Will was adequate? Both children would doubtless benefit from greater provision than that which has been made for them in the Will but “To remodel the Will because the judge thought that some additional provision would be fairer, would pay no more than lip service, or not even that, to respecting a capable testator’s judgment where it appears that a reasonable judgment has been made. …”.
If the Court had granted the order sought by the children the effect would have been after payment of costs for the estate to go to the children to the exclusion of the other beneficiaries named in the Will thereby leaving the Willmaker’s wishes unfulfilled.
The Court concluded that the children failed to demonstrate that adequate provision had not been made for them by the Will and the application was dismissed.
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