Flanagan Legal Newcastle

16/11/2024

TO DISINHERIT OR NOT?
When solicitors sit down with clients to draft a will, it is not unusual to be instructed that the client intends to leave a (usually adult) child out of their will because of the child’s perceived neglect and rejection of them. No will-maker takes such a step lightly but they need to be advised that “estrangement” cases demonstrate that generally, only the most extreme behaviour will extinguish the moral claim a child has on a parent’s estate.

Crawford v Munden; In the Estate of Angel [2020] NSWSC 1463 is an example of what many would see as how appalling and cruel behaviour on the part of a son still did not disentitle him when he made a claim on her estate. He had rejected his mother entirely from his life when she attempted on many occasions to restore relations and she was rebuffed at every turn. She left him out of her will and he made a family provision claim. The court stated that while the estrangement was tragic and serious and it was the son’s fault, it was not of a kind that extinguished his claim on his mother’s testamentary bounty.

In the end, willmakers make up their own mind but they need to be advised that, in many cases, their attempt to disinherit a child may be unsuccessful.

Client’s need to be advised of this and they need to have full discussions with their solicitor regarding how such problems might be handled (and throwing a nominal sum at the estranged child is proably not going to work).

11/11/2023

TESTAMENTARY STATEMENTS: WRITTEN REASONS FOR REDUCING PROVISION OR FOR LEAVING SOMEONE OUT OF A WILL
When will makers leave someone (such as an estranged child) out of a will they often write what is called a TESTAMENTARY STATEMENT to explain their decision. The hope is that, if the will is challenged, then this statement will be sufficiently explanatory so a court ill not interfere with the provisions they have made.
Willmakers need to be aware: if the matter does go to court, then evidence can be called to either support or undermine the assertions in their statement. It is vital therefore to be very clear-eyed and accurate about what goes into it.
In Kouroutis v Kouroutis [2023] NSWSC the court decided that the deceased’s written reasons for downgrading benefits to his daughter were incorrect: he had stated that his daughter had not attended her mother’s funeral and that she had not visited him in a nursing home for 12 months. Evidence was provided in court that both of these statements were wrong. His testamentary statement therefore had little weight and the daughter’s provision was more than doubled.
RECOMMENDATIONS
• If you want to provide written reasons do them in a separate statement not in the body of the will.
• The statement should include reasons for the exclusion of a person as well as the inclusion of others.
• Try to be objective: don’t lay all the blame on the other person if you too are somewhat at fault.
• Outline what you have done to try to rectify the estrangement.
• Update the statement to reflect changes in the nature of the relationships and any other matters dealt with in the statement.

Flanagan Legal Newcastle can provide advice if you are considering using such statements to bolster the decisions you wish to make in your will.

05/09/2023

CAN A CARER CHALLENGE A WILL
When people get older they often need assistance in day-to-day living. They may have no children to help them, or their children may be unavailable. Sometimes relatives, friends, or neighbours step in to assist. Older people need to be aware that even though an unpaid carer has no automatic right to challenge a will, if they can establish eligibility they may be able to do so.
Carers may be able to do that by providing evidence that they were living with the deceased at the time of his or her death in a close personal relationship, and that they were providing them with domestic support and personal care for no (usually financial) reward.
The carer would also need to demonstrate that there are “factors warranting an application’: Such factors might create a moral obligation that the deceased would provide for them in their will.
Skarica v Tosca 2014 provides an example. The unpaid carer/previous “boyfriend” was eligible because he had a close personal relationship with the deceased and he also provided her with domestic support and care.
He was also able to establish that there were “factors warranting”: he was someone who, in her contemplation, may have had a reasonable expectation of inheritance from her estate and she did explain in her will why it was that she had made no testamentary provision for him. Also, the applicant provided the deceased with domestic support and care after the date upon which the deceased made her will and left him out of it.
BE AWARE
Under some circumstances carers could be eligible to challenge a will: it might be wise to ensure that anyone who cares for you is paid adequately and that there is evidence of this.
Willmakers do have the freedom to decide who will inherit their property but they need to know that if they provide insufficiently for eligible people, then courts have the discretion to interfere with their wishes.

20/08/2023

CAN A STEP-CHILD CHALLENGE A WILL?
A stepchild has no automatic right to challenge a step-parent’s will.
To establish eligibility they need to show that they lived in the same household as the deceased, and that the deceased cared for them during this time.
Then they need to demonstrate that there are “factors warranting an application’: for instance, did the deceased tell them they would inherit property from them one day; did the stepchild provide significant help by looking after them when they were old, or by conserving or improving the deceased’s property? Such factors might create a moral obligation that the deceased would provide for them in their will.
THIRKELL V COX 2010 provides an example.
A step-child applied for provision from her step-mother’s will. She was eligible to apply because (I) she and her father had lived with the stepmother and (ii) the stepmother had cared for her when she was a child. The factors warranting an application were that the step-daughter had been recognised in the deceased’s will and also that the stepdaughter had provided devoted care to the deceased in her last years. The court ruled that the stepchild’s application was successful and that she would therefore receive modest provision.
Willmakers do have the freedom to decide who will inherit their property but they need to be aware that if they provide insufficiently for eligible people, then courts have the discretion to interfere with their wishes. Willmakers who are considering leaving stepchildren who were dependent on them out of their wills, or instead just providing them with a “nominal” sum, should take advice from a solicitor. They may need to make compromises to avoid a legal challenge.

24/07/2023

Loved this

Gary Clement on going to the movies.

20/02/2023

A GRANDCHILD MIGHT BE ELIGIBLE TO CHALLENGE A WILL BUT THEY HAVE TO ESTABLISH OTHER FACTORS WARRANTING AN APPLICATION
Being a grandchild is a start but they also have to establish that they were “at any particular time, wholly or partly dependent on the deceased grandparent’. Once previous dependency is established the grandchild has to also establish that there are factors warranting an application.
FEDE v DELL’ARTE 2009 NSWSC is an example.
The granddaughter had been dependent on her grandfather. Following the separation of her parents in 1988, she and her mother had moved into the grandparents’ property and the majority of the family income came from the grandfather.
So the grandchild was eligible but she had to do more: she had to establish that, having regard to all the circumstances of the case (whether past or present), there were factors which warranted the making of the application. In other words, given the past circumstances, would most people believe that the grandfather should have left her something/something more in his will?
In this case:
• Her grandfather did recognise her in the will and did give her some minor provision (taking into account his very large estate)
• he had written a previous will in which he had given her half of his estate
• he also thought it necessary to explain in the will the reasons why he was making the limited provision for her
The court decided she was eligible and that there were factors warranting her application, it increased the provision made for her in the will.
Willmakers do have the freedom to decide who will inherit their property but they need to be aware that if they provide insufficiently for eligible people, then courts have the discretion to interfere with their wishes. Willmakers who are considering leaving grandchildren who were dependent on them out of their wills, or instead just providing them with a “nominal” sum, should take advice from a solicitor. They may need to make compromises to avoid a legal challenge.

08/01/2023

YOUR CHILD IS ALWAYS ELIGIBLE TO MAKE AN APPLICATION FOR MORE PROVISION FROM YOUR ESTATE

Sometimes parents decide that they are very unhappy with their adult child’s behaviour and will therefore leave them entirely out of their will, or instead, throw them a nominal sum. However, as Hallen J in Page v Hull-Moody stated: “ (although) the relationship between a parent and child changes when the child attains adulthood…a child does not cease to be a natural recipient of parental… support”: in other words, parents are often seen to have an moral obligation to make “sufficient" provision for their adult children in their wills.

Failure to make such provision may lead to a challenge, and such challenges often disrupt family relationships more and are very expensive and eat up much of the estate. Average legal costs for challenges are currently around the $80,000-100,000 mark for each party.

In Crawford v Munden [2020] NSWSC a mother left her son entirely out of her will. The court found that to have left him nothing was not to have recognise his moral claim on her estate, even when his major responsibility for the estrangement was taken into account. The court found that provision in the sum of $150,000 (out of a possible around $450,000 left after legal costs) ought to be made for him.

In Smith v Smith [2016] NSWSC the father left two of his (estranged) children nominal sums of $30,000 each and another child the residue of a not inconsiderable estate. The court found that although the father did not have a legal obligation to provide for his adult children, nor did he have any obligation to treat his three children equally he should have provided them with a modest rather than a nominal sum (around $90-100,000 each).

Willmakers do have the freedom to decide who will inherit their property but they need to be aware that if they provide insufficiently for eligible people, then courts have the discretion to interfere with their wishes. Willmakers who are considering leaving children out of their wills, or instead just providing them with a nominal sum, should take advice from a solicitor. They may need to make compromises to avoid a legal challenge.

08/12/2022

A CURRENT SPOUSE IS ALWAYS ELIGIBLE TO MAKE AN APPLICATION FOR MORE PROVISION
Writing a will can be very complicated when you are part of a blended family You usually wish to provide for your current spouse and also for the children of your current and previous relationships. It is wise to seek legal advice before attempting such an exercise.
Sometime willmakers want to leave the substantial part of their bounty to their children but they do need to be aware that it is always wise to ensure that the current spouse has sufficient provision. If this is not the case, a spouse is undeniably eligible to proceed to the courts for more.
Among the most common and certainly the most bitter family provision cases are those between a widow and the adult children of the deceased from previous relationships.
Steinmetz v Shannon {2019} NSWCA provides a case in point.
The deceased had a substantial estate of $6.8 million. He left his widow of 28 years with an annual stipend of $52,000 and the rest went to the children. The NSWCA found that the widow had made a very substantial contribution to the relationship for some 28 years and that she had legitimate expectations of living in a similar style to which she had become accustomed. The court awarded her $1.75 million.
Willmakers do have the freedom to decide who will inherit their property but they need to be aware that if they provide insufficiently for eligible people, then courts have the discretion to interfere with their wishes.

31/10/2022

WHO CAN MAKE A CLAIM ON YOUR WILL: INTRODUCTION

When having a will drafted it is essential that you consider very carefully who might be a natural object of your beneficence. If these people are omitted, or if they consider they that have not been treated fairly, they might be able to make a claim on your will.

It is important then to be aware of who might be eligible to make a claim.

The following are "eligible persons" who may apply to the Court for a family provision order if they are unhappy with how you have (or haven't) provided for them:

(a) a person who was the spouse of the deceased person at the time of the deceased person's death,

(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death,

(c) a child of the deceased person (but usually not a step-child or a natural child who was adopted)

(d) a former spouse of the deceased person,

(e) a person: (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,

(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death.

Eligibility for people in groups (a) (b) and (c) is very straightforward, the people fitting into groups (d) (e) and (f) will also have to establish factors warranting an application (in other words, it will be harder for them to establish their eligibility).

Flanagan Legal Newcastle can assist you in determining who might be eligible to make a claim in your particular circumstances.

28/09/2022

JUST HOW BAD DOES AN ADULT CHILD’S BEHAVIOUR HAVE TO BE TO EFFECTIVELY DISINHERITED?
Some parents have become so distraught with their adult child’s behaviour that they make the very hard decision to leave that child nothing in their will. This does not always prove effective. Sometimes, if the child makes a family provision claim, the court will grant them provision despite their “disentitling” behaviour.
Crawford v Munden; In the Estate of Angel [2020] NSWSC provides an example of such an outcome. The court recognised that the son was responsible for a 16-year period of estrangement. The mother had made many attempts at reconciliation: she had moved twice to where her son lived, she had attempted to see her grandchildren, but was completely rebuffed by her son. He totally wiped her out of his life. A reasonable person reading the case details might well have concluded that his behaviour was cruel and heartless and that he deserved to be disinherited. Nonetheless the court gave him substantial provision from his mother’s estate.
In Grant v Grant; Grant v Grant (No. 2) [2020] NSWSC the daughter:
• bullied, harassed and threatened her parents for money over several decades
• her parents and especially her mother were frightened of her and at one stage even left the country to get away from her
• she misused the power of attorney she had for her father, sold his house to her daughter for a nominal sum and left him without sufficient funds to pay his nursing home fees
• she moved him from nursing home to nursing home so her siblings could not contact him
• her mother disinherited her, she applied for family provision and was unsuccessful.
This case indicates that really bad behaviour: behaviour that is actively hostile, aggressive and potentially criminal will probably be sufficient to effectively disinherit an adult child.

25/08/2022

IF YOU DON'T MAKE A WILL YOU COULD LEAVE A MESS BEHIND YOU
Many people procrastinate when it comes to making a will. This could prove traumatic for those you may wish to protect when you are no longer around.
If you die without a will the NSW Trustee and Guardian (NSWTG) may have to take over the administration of your estate if a relative cannot be found to take it on.
Even though the NSWTG is a government agency, it is not subsidised by the government. It is self-funding and therefore it is entitled to charge commissions and fees on the work they do. The fees charged to administer your estate could prove to be substantial.
The NSWTG would have to start from scratch. It has to make enquiries and advertise to locate who is rightfully entitled to a share of your estate. There are statutory regulations regarding the order of who will inherit and what proportion of the estate they will receive: https://www.tag.nsw.gov.au/deceased-estates/find-will/dying-without-will If there are overseas relatives the NSWTG genealogy department would have to get involved. They may have to search birth, marriage, death and divorce events in every state and country the deceased and each relative lived. This research takes time and can span many years. If NSWTG are unable to prove that relatives are entitled then they have to apply to the Supreme Court for an order to distribute the estate This cost is also absorbed by the estate. In the meantime family members may be in great financial need.
MacDonald v Public Trustee [2010] provides a salutary (and admittedly, non-representative) example
https://www.caselaw.nsw.gov.au/decision/54a005673004262463c98450
Theresa Stapleton died without a will in 1968. The Public Trustee took over the administration in that year. For forty years her relatives were in communication with the Public Trustee trying to get their entitlements. When the matter went to court the
assets of the estate were no longer held by and could not be located.
This “grim picture” of administration could have been avoided if Theresa Stapleton had made a will in the first place.

28/07/2022

SCOTT MORRISON IS WRONG: YOU DO NEED THE GOVERNMENT IN YOUR LIFE (especially if you are considering moving into a Retirement Village)

Without the intervention of the NSW government retirement village residents would still be:

PAYING RECURRENT (general services) FEES well after they have permanently left their residence: now there is a legislated 42-day cap;

HAVING TO STAY in the village well past the time they should have left for aged care accommodation because, if their unit wasn’t sold, they couldn’t cover the costs of moving or pay the nursing home daily fees: the Aged Care Rule has now been legislated which means residents can now access part of their estimated exit entitlement money before their unit is sold to pay those costs;

BE STUCK WITH A CONTRACT which might be unsuitable for their needs, especially when they need to leave the village: now the regulations prescribe that contracts must be in standard form and even though there may be other terms added these cannot be inconsistent with the standard terms or with retirement village laws or any other law.

As a retirement village resident you are better protected because of government intervention and supervision: https://www.fairtrading.nsw.gov.au/about-fair-trading/legislation-and-publications/changes-to-legislation/changes-to-retirement-village-laws (but be aware some changes apply only to residents with registered leases who will receive at least 50% of the capital gain).

You are also better protected if you ask a solicitor to explain all the ins and outs of the contract well before you move in. Flanagan Legal Newcastle can help you understand your contract and also explain how NSW government protects retirement village residents.