FREEDOM TO LOVE AND HATE.
Wills may be challenged in certain circumstances , the task is to get the right result.
Justice Young of the Supreme Court expressed the following opinion in determining the extent to which a court should interfere with a testator’s will:
“…. In Australia there is freedom of a person to leave her property in whatever way she wishes, to love whom she wishes, to hate who she wishes and there is only when there has been a failure to comply with a moral duty to those whom in the community’s eyes she should have made proper provision for, that anyone can legally complaint about another’s will. Even then, the court has no power to rewrite the will, but can only adjust things, in substitution for the testatrix, in such a way as to fulfill her moral duty”.
When dealing with contested wills the courts take a different approach when dealing with a large estate, in that, a more liberal approach is taken in the assessment of the moral duty. In particular, the lifestyle that was enjoyed by the party seeking to contest the will by seeking a greater share of the estate, becomes far more relevant where there is a larger estate.
Justice Young was dealing with an application by an 88 year old woman, who was challenging the provisions made to her in the will of her younger sister who died aged 79. The deceased had bequeathed the greater share of her estate to a nominated beneficiary, but requested that the beneficiary use his discretion in making some provision for her 88 year old sister. The beneficiary gave evidence that he was prepared to allow the woman to live in the deceased home until her death. Given that statistically the woman had a life expectancy of some 5.7 years, he argued that allowing her to live in the property rent free was more than adequate provision for the 88 year old.
The court having considered the relationship between the two sisters, the size of the estate and lifestyle of the 88 year old woman, altered the provisions of the will by transferring to the woman the entire interest in the deceased home valued at approximately $570,000, and thereby leaving of the nominated beneficiary the balance of the estate, with an estimated worth of approximately $200,000.
( published in Inner Western Courier)
