Can your Will be challenged? Recent decision on providing adequately for your children
An assumption that many people make is, once you have signed your Will, that your Estate will be distributed according to your wishes when you die. This assumption is quite wrong and careful consideration should be taken when deciding on how to distribute your Estate.
A recent case in the Supreme Court of Western Australia, Taylor v Taylor [2016] WASC 71, shows that a disgruntled child who think they haven’t been provided for adequately under their parent’s Will can challenge it.
In the Taylor case, the father (James) passed away leaving 5 adult children. Under the terms of his Will, James left his house to one of his sons (Allan) and the balance of his estate equally to all 5 of his children. The whole Estate was worth just under $500,000. Another son, Lindsay, challenged the Will claiming that he wasn’t provided for adequately. Lindsay argued that he has several medical conditions and does not have a big asset pool to live a comfortable life.
When James became ill, Allan took on the responsibility of being his full time carer in order to avoid having to put his father into a nursing home. Allan took care of everything for his father for the last few years of his life.
In Master Sanderson’s reasoning, his Honour stated that there are several principles that need to be considered when determining when a child has been provided for adequately. None of the principles are decisive. However, they do play a role in determining whether adequate provision has been made.
In deciding the case, Master Sanderson stated:
“Over the years, courts have developed the test of the wise and just testator. In this case if the thoughts of such a mythical figure were analysed it would not be difficult to see how the deceased would favour [Allan] with the bulk of his estate. It represents gratitude for the selfless way in which [Allan] conducted himself. Put another way there is every moral justification for the deceased disposing of his estate in the way that he did.”
The plaintiff’s claim was dismissed.
When preparing your Will, it is important to consider how you will be distributing your assets. Sometimes, distributing equally between all children may not be considered adequate and at other times it may be. If you think your Will could be challenged, please contact Rob Durey or Kimi Shah on 08 6166 9000 to obtain estate planning advice.