Whom thinks lazy entitled layabout beneficiaries should be able to challenge a will?

I'm the executor of an Estate, it will turn messy. (I am not a beneficiary, it's to assist an old friend that's been very kind to me, particularly after the passing of Mum and Dad). I'm doing some reading that should be frightening to some of you.

Some pertinent cases:

https://www.aitken.com.au/the-millionaire-the-daughter-and-the-crossbow-joss-v-joss/

So you can attempt to kill your father with a cross bow, have been provided for all your adult life, then sue the Estate for more, and get it, along with the Estate paying for your gender re-assignment along the way.


Another:

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2005/354.html?context=1;query=set%20aside%20and%20probate%20act%20and%20moral;mask_path=au/cases/vic/VSC+au/cases/vic/VSCA

Hercko Herszlikowicz ("the deceased") was born on 25 May 1923 in Poland into a Jewish family. He spent the duration of the Second World War in concentration camps in Germany. At the end of the war the deceased was the only survivor of his parents and eight siblings. The deceased met his future wife, Rachel, in a hospital in Germany after the war. The deceased and Rachel married in 1945 in Germany. Rachel Herszlikowicz was also of Jewish faith, and the deceased and Rachel actively practised their faith and maintained a traditional Jewish home.

His wife died. He had two children, Morris Herszlikowicz and Sally Lust.

The Will
- Each of Sally's sons, Mark and Adam Lust, got a flat.
- Morris got a flat.
- Sally got a factory, a house and the residue of the estate.

The Kids
Sally got a degree from Monash, a teaching certificate from University of Melbourne, had a career in teaching and remained close to her parents through the end of their lives. This was not disputed by Morris.

Morris did well in school to the point where he was offered free tuition to study medicine at the University of Melbourne. He became a doctor, got married, bought a number of houses and investment properties, shares and thoroughbred horses. However, after being injured in a car accident, he became addicted to pethedine, self medicated, lost money through bad investments, had to sell houses, went into detox (which failed), lost his medical licence and defruaded Medicare. He moved from up to 12-15 Pethadine injections a day to up to 80 Panadeine Forte tablets. 22 charges of drug prescription misuse, additional counts of defrauding Medicare, lost $500k in 4 months of gambling, had to sell the family home, went to prison, had an affair and got divorced. He never had a relationship with his father.
Morris's Financial Situation

"The deceased loaned the plaintiff $70,000 in December 1983, at 11 per cent interest calculated annually. The plaintiff contends that the loan was forgiven by the deceased."

"The plaintiff’s poor financial position is further compounded by his debts totalling approximately $330,000 to $350,000"

"The plaintiff’s only asset is the Malvern flat bequeathed to him by the deceased. The plaintiff will need to sell that property to discharge his debts. "

Factors in the Decision

"This case raises the issue of the approach to be adopted by a court to an application by an adult child who has enjoyed a high level of prosperity in life but has, through a combination of factors including his own fault, folly and moral failings been placed in a position, as at the date of the testator’s death and at the date of the hearing of the application, of great financial need. These matters are obviously relevant for me to consider under paragraph 91(4)(o) of the Act and in considering whether the provision made in the will for the plaintiff was proper and adequate. "

"Mr Wells, who appeared for the executor of the will, submitted that the objective propriety of the character and conduct of an applicant under s. 91 of the Act, judged according to prevailing community standards, was highly relevant to any assessment by the court as to whether proper provision has been made in the will."

"In my view, each of the two jurisdictional requirements of s. 91 of the Act have been met. I find that, notwithstanding the admitted failings of the plaintiff, the deceased, in all the circumstances of the case, continued to have a moral responsibility to make provision for the plaintiff in his will."

"In my view, the only obligations or responsibilities which the deceased had were to provide for his daughter and son. The deceased did not have any obligation or responsibility to provide for his grandchildren in circumstances where each of his own children were still alive.[26] In this regard, it was submitted on behalf of the plaintiff that, to the extent necessary to fund any further provision which I may order in favour of the plaintiff, it is open to me to set aside the devise to the grandson, Adam Lust. This is particularly so in circumstances where Adam Lust is likely to inherit half of his parent’s estate in due course, which estate is likely to be not insubstantial. Although I accept this submission, as will appear, it is not necessary for the devise to Adam Lust to be set aside in order to fund further provision to the plaintiff.

Paragraph 91(4)(g): size and nature of the estate

132 In my view, the estate is large enough to both provide adequate provision for the proper maintenance and support of the plaintiff and also to honour the understandable wishes of the deceased to give preference to his daughter Sally over the plaintiff.

133 Although not strictly relevant to the size and nature of the estate, the fact that the deceased made significant inter vivos gifts to his daughter Sally and to her son Mark are relevant, in an indirect way, in considering the available pool of assets for distribution between the children of the deceased.

166 In my opinion, a wise and just testator would have wished to ensure that his son was placed by his will in a position where he had:

(i) unencumbered ownership of a modest dwelling suitable to his needs and legitimate wishes;

(ii) sufficient money to pay out his creditors; and

(iii) a fund or "nest egg" sufficient to provide the plaintiff to live out his days in modest pleasure.


This is frightening:

In large estates, courts will extend the moral duty to include an
obligation to provide the means that will allow the applicant to
continue the affluent lifestyle they are used to. Due to the courts’
liberal interpretation of what is ‘proper’ and what is within a ‘moral
duty’, it appears that courts are quite willing to interfere with a
testator’s wishes, thus almost guaranteeing applicants a high chance of
success once they are eligible.


and some quotes from judgements:

"the need of an applicant for further provision may extend beyond ‘the bread and butter of life’ to include ‘a little of the cheese or jam that a wise and just parent would appreciate should be provided if circumstances permit’."

"Proper maintenance is (if circumstances permit) something more than a provision to keep the wolf from the door — it should at least be sufficient to keep the wolf from pattering around the house or lurking in some outhouse in the backyard — it should be sufficient to free the mind from any reasonable fear of any insufficiency as age increases and health and strength gradually fail"

"there is no rule to the effect that proper provision for an adult and presently able-bodied child does not extend to providing him or her with a house or money to buy one"

I found it interesting that the judge took into account the inter vivos gifts.


And more:

https://law.adelaide.edu.au/ua/media/847/ALR_39%282%29_02_Villios%20and%20Williams.pdf


A person making a Family Provision Claim usually makes a claim for provision out of assets which are owned in the deceased’s sole name at the time of the deceased’s death (ie Actual Estate).

In special circumstances, it is also possible to claim provision out of assets which are not directly owned by the deceased at the time of his or her death, or which have been distributed (ie Notional Estate).

If the deceased’s estate has already been distributed so that there are no assets left in the estate and property needs to be clawed back to meet the family provision order made for an eligible person. In this case it is possible to designate any of the assets of the person who received the distribution as notional estate even if those assets are not the assets distributed from the deceased’s estate.

https://www.batemanbattersby.com.au/if-i-give-away-assets-before-i-die-will-it-defeat-claims-against-my-estate/

https://www.tved.net.au/index.cfm?SimpleDisplay=PaperDisplay.cfm&PaperDisplay=https://www.tved.net.au/PublicPapers/April_2006,_Sound_Education_in_Law,_Update_on_Testator_s_Family_Maintenance_Claims.html


Thoughts?

 

Not where we are!

 

Time to move on Jon

 

Grow up