Statutory Wills & Family breakdown

Statutory wills have largely been used in situations where a young person, who is estranged from one parent, has suffered a catastrophic injury resulting in a large compensation pay out.  In these cases, Courts have been satisfied that if the laws of intestacy applied it would be unjust for both parents to receive an equal share of the estate. Interestingly, as the population ages, statutory Wills will be applied to a broader range of cases.

GM aged 81 and her husband, GAU, aged 82 had been married for over 50years and had two adult children GK and GL. GK married GAV (the respondent to the appeal). She and GK have two sons .

GM made a Will on 21 June 1998 some four months after GK and the respondent married. Under that will certain gifts were made to the respondent. These gifts included a share in a private company, two properties, jewelry, furniture, and a share in the residuary estate.

GM has been in full-time care on account of her progressing Alzheimer’s disease since 2002. In 2011, she suffered a severe stroke that rendered her immobile, unable to speak and in a vegetative state. When this matter came before the Court GM’s life expectancy was a matter of months and a terminal event could occur at any time.

GAU has acted for his wife during her incapacity under an Enduring Power of Attorney.

In May 2014, the respondent and GK separated. Shortly afterwards, GAU filed an application in the Supreme Court seeking the alteration of the GM’s will that the son’s benefit be held on trust, in order that the respondent could never qualify as a beneficiary of it.

GAU argued that GM had a close relationship with GK and always intended that the money she had inherited from her parents and all her assets be passed down to the members of her family.  If GM had the required testamentary capacity the divorce from the respondent would have prompted a change in her Will.

The Court accepted a submission made by the respondent that the intention of the application  was “to… “protect” GK’s interest from the reach of property adjustment proceedings in the Family Court of Australia”.

On appeal it was found that the primary judge had prioritised the role of the dispute between the son and his wife over the interests of GK. The Court of Appeal allowed the alteration of GK’s Will as her wishes (if she had the capacity to communicate those wishes) should be given greater consideration than any other competing interest.

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