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When it comes to what you want to leave your kids in your will, be careful what you say. They might use it in court.

John Neale died in 2011 leaving the whole of his estate, valued at $1.7 million, to his widow, Sandra Neale. Mr Neale had three children from an earlier marriage and made no provision for them at all in his will. In 2012, two of his children, Craig Neale and Michelle-Maree Best, challenged the will seeking provision from the estate.

Their argument was based on the following facts:

  • The widow was financially secure and her welfare would not deteriorate due to the claim made by Craig and Michelle-Maree
  • Each had young children with medical conditions and physical disabilities which caused expense and distress for their families
  • In 2005, Craig and Michelle-Maree agreed to give up an interest in their grandmother’s estate in favour of their father. A deed of family arrangement had been entered into where the children took less of their grandmother’s estate so that their father could receive more.
  • Their father had told them on several occasions that he would “look after them” in his will

The trial judge agreed with their arguments and awarded Craig and Michelle-Maree $100,000 each. The widow, Sandra Neale, appealed the decision.

The appeal was thrown out, with the appeal court judges agreeing with the trial judge. The Court of Appeal judges said, “The widow’s circumstances must be balanced against the circumstances, needs and moral claims of the claimants and other beneficiaries.”

All three judges agreed that the provision made for the children in the first decision was appropriate.

What does this mean?

Heather Illot challenged her mother's will.

Heather Illot challenged her mother’s will.

Although every person has the freedom to make his or her own will, the law provides a remedy for occasions when the will seems unfair or unjust. A Court of Appeal decision in the United Kingdom has reinforced the idea that seeking revenge from the grave will be overturned by the court. In that case, a mother who had been furious that her daughter had eloped left her entire estate to charity. The daughter challenged the will and won the right to claim some provision from the estate.

In a case in the United States, a property millionaire left each of his two daughters an inheritance of $10 million each with strict requirements attached to the receipt of the money. His will stipulates that the daughters must attend an ‘accredited’ university, get married and have children before they can receive the money. Both daughters have contested the will.

Section 41 The Succession Act 1981 (Qld) sets out the responsibilities of a will-maker in that adequate provision ought to be made to a spouse, children and other dependents. If adequate provision is not given, as in both cases listed above, the will may be challenged.

In many cases, people who write their own wills without legal advice aren’t aware of the law, and therefore don’t realise that their wills can be overturned following their death. Only a specialist in this complex area of the law can explain what a will-maker is required to do, how a will can be structured in a way that diminishes the possibility of a legal battle, and how to provide fairly for all members of the family.

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