Knowing that any of your children are eligible to make a Family Provision claim to challenge your Will after you pass away, we are often asked, “how much is enough to leave each of them?” We are usually asked this question when a person does not wish to provide for their children equally or a child is estranged. Unfortunately, there is no magic answer. Our typical answer is usually alone the lines of “you should try and make adequate and proper provision for each of your children even if you are reluctant to do this”.
What is adequate and proper is very hard to determine especially when dealing with significant estates when some children and parents may be used to a certain lifestyle. This is further complicated by the concept of notional estate in New South Wales which does not apply elsewhere. This can bring in superannuation, property held as joint tenants, family trusts and assets gifted within three years of death into any estate claim. A recent case concerning the estate of the late John Hemmes (father of the trendy ‘pub baron’ Justin Hemmes) highlights some of the issues:
- John Hemmes passed away with an estate of a negative value of around $300,000 (that is, his debts exceeds his assets by $300,000). His estate did not include the family home and his money in is self-managed superannuation fund (which together were worth just under $40 million). Also just before John died he transferred $5.7 million into the names of two of his children.
- John did not make a provision for his third child Edward (who was a love child of another relationship). John refused to have a relationship with Edward.
- Edward made a ‘notional estate’ claim against the half interest of the home and the self-managed superannuation fund, claiming $4.1 million.
- The Court decided that John did not make adequate provision for Edward’s proper maintenance, education or advancement in life out of his estate or notional estate.
- While, Edward’s lawyers argued that $4.1 million was a reasonable amount to set Edward up in life, the Court ultimately awarded Edward $1.75 million taking into account the deceased’s ‘moral duty’ to make provision for him, the size of the deceased’s available notional estate and Edward’s aspirations.
- The Court held that although Edward was entitled to a substantial amount, he was not entitled to be established in accommodation beyond his and his fiancées’ reasonably foreseeable needs.
- The Court did note that a person is entitled to testamentary freedom (that is, a person can have the Will they want) but this entitlement is qualified by the Family Provision claim sections of the Succession Act.
However you decide to divide your estate, whether it be equal provision for your children or the exclusion of one or more of them, it is important that that you obtain legal advice regarding this to help you understand the issues and the law as they apply to your situation and what potential steps, if any, you can take to try to limit the chance of a family provision claim by any of your children being successful.
This article is for general information only and not legal advice. Legal advice should be obtained before taking any action or otherwise rely upon the content of this article in any way. This article relates to the law in NSW only. This article was prepared on 15 March 2018 based and has not been revised to account for any changes in the law since that time.