Home About Us Services
Business Services Personal Services
Our People Seminars Careers Contact Us

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
Publications

Wills

Court Authorised Wills

Since 1 March 2008 the Supreme Court has been authorised by sections 18 to 26 inclusive of the Succession Act 2006 to make a will for a person who lacks testamentary capacity and also to alter or revoke totally or partially a will of a person who lacks testamentary capacity. Examples of circumstances in which an application for a Court au...

Read More ...

Changes to Powers of Attorney

There have been changes to legislation applicable to Powers of Attorney. As a result there are now two documents available - a General Power of Attorney and an Enduring Power of Attorney. Firstly, what is a Power of Attorney? It is a document where you, the principal, appoint a trusted person or people, the attorney, to...

Read More ...

A Will is NOT "One Size Fits All"

When it comes to something as important as your Will, you need to have a Will that is customised and "tailored to fit" you and your individual circumstances. It's often said that your Will is like shoes and clothes… one size DOES NOT fit all! Personal circumstances vary greatly from one person to the next. If you don&...

Read More ...

Estrangement: What does it mean in the law of succession in New South Wales?

Estrangement has been described as “the condition which results from the attitudes or conduct of one or both parties” (Andrews v Andrews [2011] NSWSC 115). On some occasions in claims for family provision, the condition of estrangement comes before the Courts for determination as a result of the failure of a testator to make prope...

Read More ...

Company Power of Attorney

Consider this situation... You are the sole shareholder and officer of the company that is your primary business vehicle.    You have a Will and it is all up-to-date so when you die you should be protected – right? As you understand it your shares in the company will pass under the terms of your Will to your nomin...

Read More ...

| 1 2 3 4 | Next


Articles via RSS rss
Events
Buying or Selling Property - Everything you need to know!

Wednesday 24th Sep 2014
Time 6:00pm - 7:30pm 24th Sep


Blogs
"I feel extremely comfortable and secure dealing with the Turnbull Hill team and the work you have done for me. All you guys have this professionali...

Ben Sharma

Home Bookmark Site Print Tell a Friend Contact UsLinked In Twitter Facebook enquiries@turnbullhill.com.au