Two brothers expected to inherit when their father died, and the Will provided for a 50/50

split of all estate assets. However the eldest brother claims that he has spent many years

looking after the parents, has lost superannuation, lost promotion and lost 15 years of

opportunities living with the parents, looking after both of them until they died. The eldest

brother feels that he should be getting more than 50%. The value of the property that he will

inherit is in excess of $2m and the younger brother gets the other $2m. The eldest brother

also owns his own home.

—

Comments by Wills & Estate Specialist – Terry Johansson

Whilst it seems most unfair that the brother who contributed so little to the family welfare

gets an equal share, the basis of claims to contest a Will is financial: in this case the brother

who gave so much to the parents would probably be unsuccessful in claiming any more than

half, because it will be difficult for him to prove financial need. He may have other grounds

to make a claim, such as money owed by the parents, and in fact if he has contributed to the

maintenance, welfare and upkeep of any of the properties, he may claim an equity which

gives him some prior ownership rights.

00683.6/CQ/HUD/20165386/AU/C/XXX/4/4/2016/MAC/FN/?

A husband has found that his deceased wife has left nothing to him in her Will. Their major

assets are two properties, each of which are held as joint tenants. What is the position for

him?

—

Comments by Wills &  Estate Specialist – Terry Johansson

Assuming that deceased did not live in NSW, then he will become the surviving proprietor of

both properties and they will pass into his name outside of the Will and it makes no

difference whether or not his wife provided for him in relation to those properties.

The same situation applies in NSW except that someone may contest the Will and may be

able to claw back her half share of the properties to pay for the award made to them so her

ownership is not immune. Otherwise, in all other States, the transfer of the titles to the

husband are immune from any claim by anyone who contests the Will.

00683.6/CQ/FOR/201-/AM/C/XXX/11/4/2016/MSP/IN/?

A woman who is quite poor and was brought up on the family farm, has found that when her

mother died everything had gone to the two brothers who worked the farms all their lives.

She gets nothing except a small bank account. Her contribution to the family farm was

minimal: as soon as she could she started working in the local town and it was her brothers

who helped the parents. Is she entitled to contest the Will?

—

Comments by Wills & Estate Specialist – Terry Johansson

Based on the above, she appears to have financial need, and although it is unfair for

everything to go to the two brothers she will find that there will be some opposition if she

tries to bring a claim, as her claim is not strong. Firstly this is a “lumpy asset” which means

that the Court will be reluctant to order the sale of the farm to provide her with a benefit,

particularly when she contributed nothing directly to the building up of that asset. This is

because it is the brothers who helped the parents build up the assets, and the courts may be

reluctant to order a sale of the farm to meet any award that she is entitled to. Secondly, she

did not make a large contribution to the building of any other of the family assets.

Nevertheless the Court may order the brothers to pay her a lump sum, and they can then

mortgage the farm to help raise the loan monies, in order to pay her out. As she has

contributed nothing to the farm, she cannot say that she has an “equity” in the farm, so as to

give her partial ownership. The best hope for her will be if the brothers are able to raise the

finance to pay any award, rather than the court having to order that the farm be sold.

00683.6/CQ/CAR/201556/UK/C/XXX/-/FAC/EC/?

A father died leaving two sons. The younger son has found out that on his father’s death there

was a house in his father’s name worth about $600,000. The father held a joint bank account

with the older son of $150,000 which the younger son understands is not part of the estate as

it goes automatically to the joint account holder (the older son). The other main assets held by

the father include a life policy of $100,000 which has been assigned to the older son and

therefore is not in the estate, $200,000 held in a superannuation fund where the beneficiaries

are to be determined at the discretion of the trustees, and $50,000 in a superannuation fund,

where the older son has been named in a binding nomination as the sole beneficiary. The

younger son needs to know what assets are actually in the estate.

—

Comments by Wills & Estate Specialist – Terry Johansson

In all States of Australia, the money in the joint bank account, will pass automatically to the

older brother and is not in the estate. The life policy is also not in the estate as the brother is

the effective “owner”. Superannuation money is not in the estate, but is payable in respect of

the death of the deceased, and often goes hand in hand. When challenging the Will the

younger son will be able to bring his claim in respect of the house, but not the other assets. If

the deceased lived in New South Wales then to the extent that the estate is not large enough

to pay the Award to the younger son, half of the joint account monies may be retrieved by the

Court and used to pay the award. Superannuation monies are separate, and the younger son

may be able to claim same in addition to his claim against the estate. If he brings a claim for

further provision (challenges the Will) then the estate assets will be the house and the

$50,000 superannuation. He will not be able to access the funds that are subject to the binding

nomination, but will be able to make a claim in respect of the monies payable on a

discretionary basis.

00683.6/CQ/MAC/20121564/AU/C/XXX/-/MAR/SE/?

It is a basic proposition that what you own in life, your property, becomes your “estate” after death.

Then if you have made a will, you leave your estate to your desired beneficiaries, or if no will, to be

divided between your next of kin. Simple, right?

What if you decide to give away all your possessions before you die to just one person?

Then when you die, the will would be read but there would be nothing in the estate because it has

all been transferred to another person by an “inter vivos” gift, which means “between the living”.

In most States this is a relatively simple way to defeat a claim for further provision (a Will contest) if

you think one is likely to happen after you die. After all, what can they do? The property is already

gone and the deceased person may not have owned it for some time before they died.

This happened to an oldest son who had no idea his father had given a half share in his house, worth

about $750,000, to his sister some 2 years before he died. The father and daughter then held the

property as joint tenants. The father and daughter then held the property as joint tenants. The son

suspected his sister had in some way forced her father to transfer the half share to her, because she

was caring for him at the time. However, the consideration for the transfer was “love and affection”

and there was no proof of any psychological pressure on the father other than his complaints to the

son that the sister was threatening to go overseas to work and leave him on his own if he did not

“look after her”.

The ownership of the property by way of a joint tenancy meant that when the father died, an

application to the titles office to transfer the whole of the property to the sister by right of

survivorship was all that was required for the sister to take full title.

As the father had left a will which left everything to the sister anyway, one can ask why was half the

property transferred in the father’s lifetime?

It is hard to avoid concluding that it was in order to defeat the son’s claim for further provision after

death by emptying the father’s estate during life.

In all States except NSW this mechanism will remove the property from the deceased’s estate.

Interestingly, the situation in New South Wales is different to other States as their Succession Act

2006 has provisions which will return “notional estate” in certain circumstances where inter vivos

transfers have occurred in the 4 years before death.

The Law Reform Commission in Victoria has considered, and rejected, the inclusion of similar

notional estate provisions in the corresponding Victorian legislation.

In the son’s situation, there was little that anyone could do, as the deceased did not live in New

South Wales.

—

Comments by Wills & Estate Specialist – Terry Johansson

It is always worth a phone call to a lawyer to get advice on your position- because every case is

different. CWPL has the expertise to carefully analyse the facts and apply the law in each jurisdiction,

whether in Australia or overseas.

Terry Johansson and the CWPL team is up to date on the latest cases in this area and will be able to

advise in detail on your particular circumstances.

00683.6/DR21198/AL/JJ/201-/AU/C/XXX/- /MAC/GI/?

The number of marriage breakdowns ending in divorce has been increasing over many years. Some

authorities put the likelihood of a first marriage failing at one in three; this likelihood increases with

second and subsequent marriages to one in two.

Frequently married couples make “mirror wills” where each leaves everything they have to each

other, and the last of the couple to die leaves the estate to the children of the marriage. Second

marriages complicate the situation faced by a testator who has children from a first marriage to

consider as well as the expectations of a spouse.

The situation some people find themselves in is where their parent is the first to die, the stepparent

then makes a new will, leaving their estate (which may include assets brought to the marriage by the

deceased partner) to their own relations and not to the partner’s children. A further complicating

factor can be that the assets are owned jointly and pass straight to the surviving spouse without

forming part of the deceased estate.

A stepchild is an eligible claimant for further provision in all jurisdictions of Australia. The courts

have taken account of the origin of the assets of the surviving partner and have made provision for

the stepchildren where the stepparent benefitted from assets brought into the marriage by the

deceased’s first partner.

In circumstances where there had been an agreement between the spouses regarding the

disposition of the estate, of which the children were aware, and from which the surviving spouse

departs, the court has also held that further provision should be made.

However, where second marriages end in divorce, usually the eligibility of a stepchild to claim

against the estate of a stepparent ceases too. Once the blood relation has died, the stepchild has no

claim on the estate of the stepparent.

Although it is unusual, the couple could make mutual Wills that prohibit either of them changing

their mirror Wills. This will give a remedy to any step-child who loses out if the survivor changes

their Will.

—

Comments by Wills & Estate Specialist – Terry Johansson

It is always worth a phone call to a lawyer to get advice on your position- because every case is

different. CWPL has the expertise to carefully analyse the facts and apply the law in each jurisdiction,

whether in Australia or overseas.

Terry Johansson and the CWPL team is up to date on the latest cases in this area and will be able to

advise in detail on your particular circumstances.

00683.6/21198/AL/JJ/201-/AU/C/XXX/- /FAS/QL/?

Often the plaintiffs in will disputes and claims for further provision are elderly, and sometimes they

become involved in a protracted legal dispute.

What happens when the plaintiff starts to display the early signs of dementia? Surely they will be in

even greater need of provision from the deceased’s estate as the progress of dementia and

Alzheimer’s disease is irreversible and incurable.

Where one party is losing the capacity to give instructions to their legal team, there are serious

implications for the conduct of a court proceeding. Frequently the only option is to appoint a

litigation guardian for the remainder of the proceeding. This involves making an application to the

Court for such a person to be appointed. This is usually brought by the plaintiff’s lawyers.

In one such case, a widow contested her husband’s Will, claiming she was not properly provided for.

It was her deceased husband’s second marriage and he had children from his first marriage. These

step-children, who had previously had a good relationship with the widow, were very reluctant to

settle the widow’s (her) claim. Two unsuccessful mediations were held and the proceeding dragged

on for 3 years.

When the widow began to exhibit signs of dementia, her lawyers indicated that they would be

seeking the appointment of a litigation guardian or “next friend”. Then her step-children applied to

the State Administrative Tribunal for orders appointing them as guardians and financial

administrators of her estate.

The Tribunal, perhaps not surprisingly, refused to appoint them as guardians and financial

administrators, as they were disputing her claim for more from the estate. At the same time. The

Court appointed the Public Advocate as her guardian and the Public Trustee as administrator of her

estate. The Public Trustee acted in the proceeding as litigation guardian also.

As a tactic, the application for guardianship and administration by the defendants had the effect of

further delaying the determination of the proceeding. Because there was a clear conflict of interest,

it was never likely that the Tribunal would appoint the defendants in the proceeding as the guardian

of the plaintiff. As the estate was not large, the delay was only likely to incur further legal costs

which would further reduce the pool of funds available to settle the proceeding.

There is also the issue that if a person who is challenging the Will dies before the matter is settled or

heard by the Court, many of their rights die with them. By delaying the hearing of the claim by the

widow, her step-children may have hoped to avoid a payout by trying to delay any hearing until after

the widow died.

—

Comments by Wills & Estate Specialist – Terry Johansson

It is always worth a phone call to a lawyer to get advice on your position- because every case is

different. CWPL has the expertise to carefully analyse the facts and apply the law in each jurisdiction,

whether in Australia or overseas.

Terry Johansson and the CWPL team is up to date on the latest cases in this area and will be able to

advise in detail on your particular circumstances.

00683.6/DR21198/AL/JJ/201-/AU/C/XXX/- -FSP/CA/?

While there is often no distinction made between a marital relationship and a defacto relationship

(one where the partners are not legally married) in certain areas of the law, the same cannot be said

of their treatment in the laws of wills and estates.

Contesting a Will

Usually a spouse or dependent spouse have similar rights to contest the Will of their deceased

partner. If a live – in partner does not technically qualify as a de facto partner, they may end up with

no rights to claim from the estate whatsoever.

Intestacy Laws: No Will

The status of a spouse by marriage is unassailable – either you are, or are not, legally married. If your

spouse dies without a will, then a married partner will inherit the estate either wholly, or if there are

children of the marriage, then usually in shares with the children.

If you are a defacto spouse you will not be entitled to a penny under the Intestacy Rules.

What is a Defacto Spouse?

A defacto spouse is subject to a legal definition of the relationship, and this usually requires the

parties to have lived together for two or more years before the death, as partners and or on a

domestic basis. Frequently there are obvious factors which render the relationship a defacto

marriage- joint assets, pooled finances, children etc.

Sometimes the relationship is less easily defined- the couple may not live together, have any

children together and may keep their finances separate. However, this does not necessarily mean

that the couple are not in a defacto relationship. Sometimes there is an element of discretion or

secrecy, where not all aspects of the relationship are made public.

In these circumstances, how does the Court view these relationships when asked to decide whether

or not the relationship is a defacto relationship?

Typically, the Court looks at a range of factors to determine whether a genuine defacto relationship

existed.

These include:

 Domicile

 Finances

 Reputation

 Sexual Relationships

 Children

The defacto spouse has virtually no ?? rights to an unmarried partner.

However sometimes various additional factors help to clarify whether a defacto relationships exists.

Sometimes people will point to the fact that each party was drawing a pension at the single rate to

discredit a relationship claimed to be defacto. However, this is rarely held by the Court to be

determinative of a relationship’s status as defacto. The view which Centrelink takes is often not so

broad, and in some cases can result in action being taken for overpayment.

—

Comments by Wills & Estate Specialist – Terry Johansson

It is always worth a phone call to a lawyer to get advice on your position- because every case is

different. CWPL has the expertise to carefully analyse the facts and apply the law in each jurisdiction,

whether in Australia or overseas.

Terry Johansson and the CWPL team is up to date on the latest cases in this area and will be able to

advise in detail on your particular circumstances.

00683.6/DR21198/AL/JJ/201-/AU/C/XXX/- /MHD/QL/?

A woman learns that her husband has died, and would like to make a claim against his estate.

She feels that she was not treated properly, and it is unfair of the ex-husband to now died and

leave everything to a charity.

—

Comments by Terry Johansson, Specialist Lawyer

The first thing the wife must prove if she is going to challenge the Will in any way, is that she

is entitled to make a claim. In some States there is specific provisions for an ex-spouse to

claim, but only if they are receiving at that stage some form of maintenance, and/or if they

have not re-partnered and/or they were dependent upon the deceased and/or they had not

received a property settlement on the divorce.

Many ex-spouses who are totally independent will have no claim. At the same time they

need to investigate the terms of the property settlement if any: any ex-spouse who has not

received any property payment stands themselves in a stronger position, if they can show that

they are qualified to bring the claim and an element of dependency.

00683.6/CQ/DON/20165381/AL/C/XXX/4/4/2016/OTH/CF/?

A father and son had each a half share of a family business which they ran, and the father

insisted upon keeping his half share separate because he wanted to benefit the rest of his

family in his Will. By various means the son ended up taking control of the family business,

arguing with the father, and eventually he ended up with full ownership, for nothing. He had

paid for half, but he claimed that the half, formerly owned by the father, was effectively a

gift.

The father had made a Will leaving everything to his other four children and nothing to the

son he shared the business with. The father remarried, but he and his wife were killed in a car

accident on their honeymoon, and he died without a Will.

The circumstances were such that the new wife being deceased has no claim to challenge the

Will, and all of the assets were in her husband’s name anyway. As a result of the Intestacy

Rules the son would take a ¼ share of all the other assets in addition to the family business.

What can the other family do?

—

Comments by Terry Johansson, Specialist Lawyer

The four children who do not have the family business can contest the Intestacy Rules,

similar to a contest of the Will, alleging that the Intestacy Rules do not treat them fairly.

They would need to show that the brother got more than his fair share of the overall family

assets because of the manipulation of the father’s business, and the Court would take into

account as to whether he had earned the other half of the business. If the son with the

business could show that he had paid for everything, and that there was no unjust enrichment

of any description, then the claim by the other four may fail unless there are assets apart from

the family business. In reality it would probably settle without a court hearing.

00683.6/CQ/KAN/20121551/UK/C/XXX/-/MAC/IN/?