RUTH never married and never had any children.
When Ruth passes away, she leaves an estate worth $1.5 million.
This includes a substantial superannuation fund, which was paid to her estate.
Ruth’s last will appoints her only surviving sibling, Gary, as her executor, who also receives a 50% share of the estate, after the payment of the estate’s liabilities and expenses.
The remaining 50 percent share of the estate is to be distributed amongst four of Ruth’s nieces and nephews (niblings), being the children of Ruth’s late sister.
However, Gary’s daughter, Alice, receives nothing under the will and makes a claim against her aunt’s estate, alleging that she was a “dependent member of a household of which the deceased was a member”.
The matter is referred to mediation and the parties are ultimately agreeable to Alice receiving a lump sum of $400,000, inclusive of her legal costs, payable from the estate.
Unfortunately, the parties cannot agree to the proportions in which they should bear the burden of the payment and this aspect of the matter proceeds to determination in the Supreme Court.
The Court carefully assesses the financial circumstances of all of the beneficiaries named in the will and their relative future needs, to determine how each of them should bear the burden of the provision to be made for Alice.
The determination involves the exercise of a discretion to be exercised “according to the rules of reason and justice with due regard to the whole of the surrounding circumstances”.
The process is also described by the Court as a “broad discretion in terms of evaluative decision-making in relation to all material facts and circumstances”.
The learned Judge decides on a “just and equitable basis” that Gary should bear 70 percent of the payment from his entitlement in the estate and that the niblings bear much smaller percentages ranging between ten percent, seven percent and five percent.
The effect of the judgement is that Alice receives more than twice that of the other niblings.
Email Manny Wood, Principal Solicitor and Accredited Specialist in Wills and Estates at TB Law at manny@tblaw.net.au or call him on (02) 66 487 487.
This fictional column is not legal advice.
By Manny WOOD, Solicitor
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