Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 24 December 2016.
Anne had two children, Nicole and Karen.
Anne dies at the age of 85, leaving just one asset, being the family home worth $800,000.
Karen lived with her mother for her entire life. She has never moved out of home and never lived with anyone else. Karen contributed to the household expenses and paid nominal board.
Karen also cared for her mother, before she moved into a nursing home, shortly before her death.
Anne’s will leaves Karen the family home and its contents and leaves the rest of her estate to Nicole.
The will includes a statement that Karen has always lived in the family home and it would be a great “emotional wrench” for her to leave it.
Unfortunately for Nicole, there are no other assets in her mother’s estate, the result being that she receives no inheritance.
Nicole commences action against Karen, as executor of the estate, seeking “family provision”.
The court hears that Nicole was recently divorced and her home is subject to a substantial mortgage. She says she is only able to work three days a week and struggles to meet the mortgage repayments.
The court notes that if Nicole is to receive further provision, the family home would need to be sold, noting that it was a clear intention of the deceased, that Karen should be able to continue to reside there.
The court further notes that Anne had no obligation to treat her children “equally” and had no obligation to maintain Nicole after she became in an adult.
The court refers to the matter as “not an easy case” but ultimately decides to dismiss Nicole’s claim.
Nicole’s legal costs total $60,000 and although her claim was unsuccessful, the court states that it would be unjust to order that she also pay Karen’s legal cost and orders that they each bear their own costs.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
