Case Study: Jeffrey a 77-year-old widower was diagnosed with a terminal illness. He considered that his affairs were relatively simple. His de facto partner had died before him and he wished for all of his estate to be gifted to his de facto’s son Roger (with whom he was very close and who he considered to be like a son to him.) Jeffrey’s estate consisted of a one-half interest in a family home and a one-half interest in an investment property. The other half of these properties were already owned by Roger. Jeffrey approached his local solicitor who prepared a “simple” will for him and without consultation about Jeffrey’s family situation, history or other circumstances.
Result: Jeffrey died later the same year. His estate was worth about $600,000. On his passing, Jeffrey’s daughter from a prior relationship with whom had had no contact with for 36 years (since the child was 3 years old) challenged Jeffrey’s Will and brought a claim for provision out of the estate. She was ultimately awarded $200,000, plus costs and interest of about $175,000 by the court. [1] Jeffrey’s “cheap” Will ended up costing his estate $375,000.
Take-aways: Drafting a Will is complex and the process of estate planning requires time, careful planning and expert advice. While your personal circumstances may appear ‘simple’ to the naked eye, careful examination and planning are required to ensure that your testamentary wishes are carried out. There is a myriad of legislation that can impact on the enforceability of wills and the administration of estates in Victoria.
Blended families and estranged children add layers of complexity. Jeffrey’s estate could have been protected from unwanted claims by simply changing the manner of holding of the two properties that formed the bulk of his estate. Jeffrey could have changed the title to his properties from tenants in common to joint tenancy during his lifetime. In that case, the properties would have passed by survivorship to Roger. The properties would then not have been available to the claimant who sued the estate.
When undertaking your estate planning, it is important to remember that making a Will alone is often not enough, especially in circumstances where the will maker’s circumstances are complicated by family issues such as blended family situations or estranged family members. Similarly, the will maker’s circumstances can also be complicated by asset ownership structures, such as companies, trusts or partnerships. Obtaining the assistance of a specialist estate planning lawyer can assist you in making sure that the assets that you have built up over a lifetime end up going to the persons you wish to benefit.
Specialist wills and estate lawyers, like us, are trained to write valid Wills that take into account all of your particular circumstances. If you or someone you know wants more information or needs help or advice in preparing a valid will, please contact us or email of****@**************om.au.
[1] Facts are based on the High Court decision of Badenach v Calvert, [2016] HCA 18, 11 May 2016
