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LEGAL
Light
with JEREMY BRIGDEN FROM PRIEST LEGAL
Please, Sir, I Want Some More
F
reedom of testamentary disposition remains a foundational principle in our system of law. As eloquently stated by Calloway JA in the case of Grey v Harrison (1997) 2 VR 539: “It is one of the freedoms that shape our society and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit.” There are, however, limits to the freedom of testamentary disposition. In McCarthy v McCarthy [2010] NSWCA 103 Young JA said “So long as he complies with community expectations and what is sometimes called ‘moral duty’, the deceased is able to leave his property as he wishes.” It is well established law that the concept of “community standards” or “community expectations” will play a role in determining whether adequate provision has been made and, if not, what provision should be made under a will. Oliver Twist was born into a life of poverty and misfortune. Orphaned by his parents and raised in a workhouse with little food and few comforts, one day desperately in need of further sustenance he went forth trembling, bowl in hand, and begged the master for some more gruel. Imagine Mr and Mrs Twist had two sons. Imagine further that they favoured Oliver’s older brother, and considered Oliver too sickly, weak or unworthy to be deserving of anything. Imagine further still that the entirety of the Twist estate was left by the
parents’ wills to the prodigal son, to the exclusion of little Oliver. It would be difficult to argue that this would be in line with community expectations. The “moral duty” of the testators in this instance must surely be to ensure, at the very least, that Oliver is sufficiently provided for. Just as Oliver has asked for “more” gruel from the master, he would be eligible to make a request for further provision from his parents’ estate. Unlike the master, however, the Courts may be more inclined to provide. Clients often ask: “Why would I make a will when it can be challenged?” The answer to that question is twofold. Firstly, if you do not make a will, you will die intestate, meaning you have no power over testamentary disposition. Oliver, in this instance, may get half of the whole pie. Secondly, you can take steps to protect your will from challenge. Advice and assistance from a competent lawyer in the drafting process can minimise the likelihood of claims, and can arm your executor(s) with a legal arsenal to assist in the successful defence of such claims, if brought. Sometimes, this may involve some [reluctant] provision for the Oliver Twists in your life in order to avoid potential claims. Note that provision need not be equal or “fair”. Such concepts do not concern the Courts. Another bowl of gruel may be adequate. Only a limited category of people are eligible to approach the Court if they feel they have been inadequately provided for, or not provided for at all. Eligible people include spouses, former spouses, children (including
adopted children) and other limited categories. Eligible persons can claim even if there is no will. An executor has a duty to defend the estate and attempt to uphold the terms of the will. However, the executor must act reasonably to seek to negotiate and compromise a claim where necessary. This is particularly so if the estate is relatively small and the cost of defending the proceedings would greatly diminish the value of the estate. There are other grounds to challenge a will, beyond inadequate provision, including invalidity (such as lack of testamentary capacity) and ambiguity in construction or meaning of a will. What to do? See a competent lawyer to draft your will, or review your existing will, especially if you are considering disinheriting Oliver, or if you are concerned that there are any little Olivers lurking in the woodwork. If you are an appointed executor faced with a challenge on the deceased’s will, you have solemn testamentary duties as trustee. Ensure you engage a lawyer competent in the defence of Family Provision Claims. If you are an eligible person and believe you have been left inadequate provision, you may have a claim. To be successful a claim must be made within 12 months of the date of death. The lawyers at Priest Legal are highly competent at will drafting, and have extensive experience in contested will and estate proceedings. GREATER PORT MACQUARIE
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