Plaintiff seeks authorisation of new Will for cousin with dementia
Published 18 Oct 2018
Most legal matters regarding Wills and estates only arise once a person passes away. However, a recent case that went before NSW Supreme Court has shown family feuds over inheritance can occur at any time.
Justice Philip Hallen was tasked with resolving ‘The Will of Bridget’ case, whereby the estate of a woman who lacked testamentary capacity had to be decided while she was still alive. Bridget is a pseudonym, and Justice Hallen also used initials to keep the identities of all other parties anonymous.
What were the circumstances of the case?
The plaintiff – who is Bridget’s cousin and her Power of Attorney – sought permission from the courts to authorise making a Will on Bridget’s behalf.
She had previously executed a Will that left her $2.41 million estate to her husband, HEML. However, he predeceased Bridget and the Will contained no other substitute beneficiaries. As such, her assets will be subject to intestacy rules when she dies, meaning the entire estate is due to pass to her two nephews.
Bridget’s family have been unable to find a subsequent Will and she can’t clarify her final wishes because she suffers from dementia. The plaintiff, GFD, requested the courts authorise a Will that he drafted based on conversations he claimed to have had with his cousin regarding her estate.
How did the case unfold?
GFD’s proposed Will suggested he should receive 25 per cent of the estate, while the remainder be split between other family members, charities and nursing homes and companies linked with Bridget’s care. Her nephews were specifically excluded from the plaintiff’s recommended Will.
Justice Hallen said the courts should always hesitate before making of a Will on someone’s behalf, particularly when a plaintiff is set to benefit from estates where they otherwise wouldn’t.
Here, the plaintiff would not receive any legacy from his Bridget’s estate under intestacy laws, and he isn’t eligible to pursue a family provision claim when she dies.
Did the judge authorise the making of a Will?
Justice Hallen was not satisfied the proposed Will accurately reflected Bridget’s final wishes regarding her estate. In fact, she has exhibited an aversion to writing a will on a number of occasions.
The judge therefore ruled against the plaintiff, which means Bridget’s estate is likely to be split equally between her surviving nephews upon her death.
However, the result of this case shouldn’t deter people from pursuing inheritance disputes. Approximately three-quarters of Will contestations in Australia are successful, according to a 2015 study by several esteemed academic institutions.
If you’d like to discuss proceeding with a claim, please contact Gerard Malouf & Partners Will Dispute Lawyers for more information.