Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 15 December 2018.
Mary has five children.
Mary lives with her sons, John and Daniel.
Daniel suffers from an intellectual disability and John is his carer. Daniel has $100,000 in bank accounts that are under the control of the NSW Trustee & Guardian.
When Mary passes away at the age of 85, her will grants John and Daniel the right to reside in her home for life and leaves the rest of her estate to all of her five children equally. They each receive $250,000. Daniel’s share is to be held on trust by the executors for his benefit.
The NSW Trustee & Guardian challenges the will, seeking an order that Daniel receives $600,000 in addition to his right to reside in the home.
Although a claim of this nature has a limitation period of 12 months after the date of death, the NSW Trustee & Guardian commence action three years after Mary’s death. The court grants the NSW Trustee & Guardian an extension of time.
The court finds that due to Daniel’s intellectual disability, the provision that he receives under Mary’s will is not adequate.
However, the court decides that Daniel should receive $300,000 in lieu of his entitlement, being an increase of just $50,000. The court also orders that the whole of Daniel’s entitlement is not to be held on trust by Mary’s executors, but is to be managed by the NSW Trustee & Guardian.
All of the legal costs incurred as a result of a four day hearing are ordered to be paid out of Mary’s estate. The legal costs involved in the NSW Trustee & Guardian’s claim, far exceed the modest increase in provision awarded for Daniel.
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.
