Home About Us Business Services Personal Services Claims Contact Us Services

Fairness and equality in your Will requires a lot of thought and a well crafted document

Written on the 21 May 2010 by Warwick Gilbertson

Following is an example of how a commonly used term in a Will which on the face of it appears fair, can actually result in very unfair consequences.

Patrick and Jane are in their early fifties and have three children aged 26, 21 and 13. They have a Will which makes equal provision for the three children.

The eldest child Charles is a qualified accountant. He has just graduated from university. He is in full-time employment earning $50,000.00 per year.

The middle child Anne is a second year university student and has two years to complete her economics degree.

The youngest child Clare has just commenced high school. She has six years of high school to complete. It is then anticipated that she will go to university.

Patrick and Jane attend a solicitor to check their affairs are in order. The solicitor asks questions about their personal life and their children. "We have a Will. Everything is divided equally." The solicitor looks at them and asks, "Is that fair?" . This was an unexpected question. Nobody had asked a question like that before. "Of course it's fair Isn't it? " The effect of the existing Wills was then carefully examined.

If Patrick and Jane were killed in a motor vehicle accident today, Charles and Anne have had the benefit of their parents' full support during their high school education. Clare would not have the benefit of that support.

Anne currently works part time for a bank and her income is supplemented by her parents. (The parents pay for incidentals which she cannot afford such as car repairs, clothing, holidays, small luxuries and food from time to time). Anne is "semi dependent" on her parents. Charles has already received this support and benefit from his parents and is independent.

Clare, on the other hand, is still totally dependent on her parents. After their death she will not have the support of her parents during her high school years that Charles and Anne did.
Neither will Clare have the support of her parents when she is at university that Charles had and Anne has had to date. Clare will have to provide for herself. That provision will come from her share of her parents' estate.

Working out the dollar value of the benefits received by Charles and Anne during the time they were fully dependent and semi dependent shocks Patrick and Jane.
"Shouldn't Anne continue to receive supplementary support from the estate until she finishes her university degree? Shouldn't Clare receive full support until she completes her high school and supplementary support during her years at university?"

The only available means to provide this support is from the estate. The current Wills of Patrick and Jane do not address this inequality although they appear to be "fair". Charles has been treated in a financially superior fashion to Anne. Anne and Charles have received benefits far in excess of the benefits given to Clare. "In this example, "I give the whole of my estate to be divided equally" is not equal at all.

If Patrick and Jane wish to achieve equality and fairness in their Wills, they need to spend more time properly considering what are fair gifts to their children having regard to all the prevailing circumstances, and then have Wills crafted in such a way that their wish will be achieved.

We hope this has been of interest and if you have any questions, please call on 02 4904 8000 or email Warwick Gilbertson (Specialising in Estate Planning).

If you have any further questions about this topic or you'd like to discuss a related matter, please do not hesitate to call us on 1800 994 279 or email us. A member of our Wills & Estates team will endeavour to respond to your enquiry within 24 hours.

- Warwick Gilbertson
Partner, Wills & Estates Lawyer

Warwick Gilbertson - Wills & Estates Lawyer

Will Disputes in NSW

Author: Warwick Gilbertson

Contact Us Now

We respond in 24 hours or less

Please provide details regarding your matter so we can assist you

Enquiry Form

Fill out our enquiry form and we'll respond within 24 hours

Listen to the captcha

Post-Separation Earnings Are Included in a Property Settlement - So don't delay!

Why shouldn't you delay your property settlement? In the case of Trask & Westlake [2015] FamCASC 160 (14 August 2015), the Full Court of the Family Court of Australia ordered that $9 million which the husband's had received through income following separation was to be included in the property pool for division between the par...

Read More ...

Real Estate Agents now prohibited from "underquoting" prices...

A new piece of legislation aimed at eliminating underquoting by Real Estate Agents was passed by the NSW Parliament on 22 October 2015. The Act is titled "The Property, Stock and Business Agents Amendment (Underquoting Prohibition) Act 2015". The Act provides that: 1. Agents can no longer use the words "offers over&...

Read More ...

Changes to Workers Compensation law effective 16 October 2015

Back > Workers Compensation Claims Changes to Workers Compensation law effective 16 October 2015 On 16 October 2015 the NSW Government introduced changes to the workers compensation legislation. Those changes which will benefit injured workers are as follows: 1. All eligible injured workers who are receiving weekly payments...

Read More ...

Is unfriending a work colleague on Facebook actually workplace bullying?

Is unfriending a work colleague on Facebook actually workplace bullying? In a recent ruling by the Fair Work Commission (FWC), a real-estate agent (Lisa Bird) who unfriended a colleague (Rachel Roberts) on Facebook after an argument was found to have displayed "a lack of emotional maturity" and that unfriending her colleague was...

Read More ...

Are you fleeing from domestic violence?

Are you fleeing from domestic violence (DV)? If you are in a domestic violence relationship and you have made the decision to leave, the practical suggestions below may assist you to leave the relationship, safely. This article is not an exhaustive list of options, it contains information that real people in a similar situation have ...

Read More ...

| 1 2 3 4 5 6 7 8 9 10 | Next

"I am very pleased with the work John Woodward d...

David Timbury

Liability limited by a scheme approved under Professional Standards Legislation