WILLS & ESTATES
The child who was left out in the cold
Hackett v Public Trustee 1997 ACTSC 30
One of three adopted children was left a bequest of $500 from an estate of $396,000 gross. The child had criminal convictions as a minor and was itinerant and unemployed. He claimed to have settled down and reconciled with the new wife. Issues of stealing money, a car etc were discussed. Clearly the testator had advice but gave insufficient funds to the child in his will. Higgins J comments that if the father had given one third to each child there was nothing the other two children could have done. Costs and the fees of the Public Trustee would probably reduce the estate by $100,000 so that the child ended up with about 20% of the net estate.
DNA testing of a claimed child
Williams v Smith as executor estate F I H Barker
This case dealt with the issue of whether a child, now adult could be forced to have a DNA test which was to be compared to material taken from a body for the purpose of excluding parentage. The mother had separated from the father when the child was 10 saying he was not the father. The father had taken the child into his family and cared for him. The other children sought to exclude the child from a share in the deceased fatherís estate. Connolly J refused the DNA request on the ground that DNA was not decisive since the deceased had accepted the role of parent, the child was a member of the family and the birth certificate could be relied on.
Can the cats inherit?
1NSW Public Trustee v Smith 2008 NSW SC 397.
A medico made her own will. She was concerned for the care of her two cats and so named a beneficiary who, if she looked after the cats for 15 years in a unit called "my property" would be entitled to the unit. The medico had overlooked the fact that the unit was held by a trustee company for a trust of which the medico was not a beneficiary.
Four years after the death of the medico, court proceedings were taken to rule on the provisions of the will. Three years later a two day hearing resulted in a judge ruling against the application by the carer of the cats, but suggested some other steps the Public Trustee as carer could take.
This case demonstrates that an educated person thinking they know the facts would still be wise to have professional advice drafting a will. The costs, time delay and anxiety to the cat carer mean the decision of the will maker was unwise.
Minimising the share of some children to benefit others
Crossman v Riedel 200 ACTSC 127
A widow in her 90ís in a Nursing Home made a new will apparently influenced by an interstate older daughter who had fallen out with and who was critical of local siblings and the care given the mother.
The widow gave written reasons for her action in minimising the share of the local children in particular, two of her nine children who lived in modest circumstances. Those reasons a judge found unsatisfactory to justify what the widow did. The two who applied each received a quarter of the estate, with costs to come out of the estate. The hearing took 3 days.
Where you wish to disinherit or leave a reduced benefit in a will, great care needs to be taken in what is said, and you should accept advice on what will hold up under the glare of scrutiny by a judge and the professional drafting of the reasons. Here the action of the widow worked against the elder daughter and made the task of the two claimants easier