Hypothetical by Manny Wood published in the Coffs Coast News Of The Area on 22 October 2021.
Brian and Julie were married in the summer of 1969. They went on to have three children, Kathryn, Paul and Matilda.
In 2008, Brian passed-away and left his whole estate to his wife, Julie.
Julie then moved in with her son, Paul and he and his family provided her with care.
Kathryn married Nick and they tried for several years to have children before undertaking IVF. Julie was hopeful that the IVF program would provide her with more grandchildren.
In recognition of Paul’s care and support, Julie updates her will to include a gift of $100,000 to Paul. She leaves the rest of her estate to all of her children equally and if any of those children died before her, there is a provision to the effect that that child’s share goes to their “children”.
Unfortunately, in 2016 Kathryn is diagnosed with an aggressive cancer and sadly, passes-away 6 months later.
It was Kathryn’s wish for Nick to use their frozen embryos and a year later, Nick begins the process of finding a surrogate mother. Julie remains in close contact with Nick and is supportive of his decision.
Unfortunately, Julie passes-away shortly before Nick receives the news that the IVF process has been a success.
Nick seeks legal advice regarding his child’s entitlement under Julie’s will and decides to seek a declaration from the Court, that his child is entitled to Kathryn’s share.
The Court decides that as Julie was aware that Kathryn and Nick had frozen embryos, Julie had the ability to make provision for those “unborn children” in her will, but because she did not do so, and there was no “period of gestation in the uterus” at the time of Julie’s death, Nick’s child was not entitled to a share of the estate.
Thank you to Anthony Fogarty for his assistance with this column. If YOU would like a particular issue addressed, please email me at manny@tblaw.net.au or call me on (02) 6648 7487.
