Wills need care and attention.  Estate planning needs care and attention.   And when this doesn’t happen, the consequences can be extremely challenging and unfortunate for those left behind.

The ever increasing amounts of information on the internet is only adding to the problems encountered by those left behind.  What if the information isn’t correct, or relevant to their circumstances, or incomplete?

Today’s article isn’t about someone acting upon incorrect information sourced from the internet.  It is about the benefits of your Will being consistent with your management of your assets whilst you are alive. 

It has been (and continues to be) an expensive & all-consuming exercise for these 3 adult children.

Last Friday (1 June 2018) the Supreme Court handed down a decision.  But it’s only the beginning!

The Will

In 2011, an elderly man made a Will.  In the Will, he states that one of his 3 children (David) will receive a larger share of his estate as his other 2 children (Isobel & Peter) have been better provided for by him during his lifetime.  David & Isobel are to be the executors of the Will.  So far, so good.

A few years later, the man changed the ownership structure of a significant rural property (“EE”) so that David would become the sole owner following the man’s passing.

Removing an asset from your estate is easily achieved (although with some costs) by adding someone as a co-owner as a Joint Tenant, as the asset will be excluded from the estate and a Will does not apply (until only one owner remains).

The elderly man did not change his Will.

Executor’s appointed after passing

Following the man’s passing in September 2016, David & Isobel accepted their roles as executors and Probate of the Will was granted.

It becomes apparent to Isobel & Peter that a significant part of their inheritance was to be paid from the sale of EE, however that property is no longer part of the estate.

Thus Isobel & Peter believe that David has benefited far more than their father intended, and that as a consequence Isobel & Peter have not been adequately provided for.  They also have doubts about their father’s mental capacity at the time that the ownership of EE was changed.

There was obvious tension between David & Isobel, and Isobel considered that they could not work together to properly discharge their duties as co-executors.  Isobel & Peter also wanted to commence court proceedings for a family provision claim.

Isobel wanted an independent person to be appointed as the executor of the Will.  David wanted to continue in his role.  The problem for Isobel is that she and David had already accepted the roles of Executor, and an Executor can’t simply resign.  As order of the Supreme Court order is required.

In May 2018, some 20 months after their father’s passing, at great expense and significant time and emotional energy, David & Isobel and their respective legal teams argued their case before the Supreme Court.

Last Friday, the court agreed that the best way forward was for an independent person to be appointed as the administrator of the estate.  The orders included that David & Isobel be removed as Executors and that the Probate issued in their favour be revoked.

This is only the beginning of this family drama.  The Administrator has to do the job.  The family provision claim has to be pursued.  Perhaps the family are sitting together at a table negotiating!

This scenario may have been avoided or minimised if all family members had been involved in the discussions and planning with their father and legal advisor at the very beginning.  That’s easier said than done with many family dynamics not being conducive to important estate planning discussions.

Disclaimer: The above is to be considered as general education. This is not advice and it is not to be acted upon without advice from a qualified professional who understands your personal circumstances.

Copyright © 2018 Wockner Lawyers. All Rights Reserved. Contact Wockner Lawyers – [email protected]. This article may not be used without the prior written consent from the author. See below for more details…

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For assistance with your next Property and Conveyancing transaction, or your Wills and Estate Planning arrangements, contact Wockner Lawyers.

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