Published in the Coffs Coast Advocate on 6 June 2015.
During the course of their 16 year marriage, Jack and Jill had 3 children.
Jack and Jill divorced 20 years ago and Jill received the bulk of their assets by way of a property settlement.
Five years later, Jack entered into a de facto relationship with Yue and they have been together for the last 15 years. Yue also has a son to a previous relationship.
During their relationship, Jack and Yue have accumulated substantial assets due to various joint ventures including the operation of a successful restaurant.
Jack made a valid will, which left an investment property that was in his sole name to his 3 children equally and left the rest of his estate to Yue.
When Jack dies at the age of 75, his 3 children discover that the investment property is the subject of a substantial mortgage and that there is very little equity to which they are entitled.
The children also discover that Yue, who is in her early 60s, receives assets valued at around $600,000.
Jack’s children, seek legal advice as to their rights regarding their late father’s estate.
Jack’s children are informed that they are eligible to challenge the will by way of seeking a family provision order. They are also informed that if they were to make a claim, the court would weigh-up the competing interests in the estate, which would include a careful analysis of the individual circumstances of each of the 3 children together with those of Yue and her son.
They are advised that in the circumstances, the court would consider Yue’s interests to be of paramount importance and that she would likely receive the majority of the estate.
Jack’s children are surprised to hear from their solicitor, that due to their differing individual financial circumstances, it would be very unlikely that they would each receive an equal share of the estate. They are informed that because one of Jack’s children was yet to complete her university degree, and had accumulated very few assets, that this child would likely receive significantly more than the others.
After Yue receives independent legal advice, the parties are able to reach an agreement increasing the provision for Jack’s children and avoiding the necessity of court action.
