It is not uncommon for people to make Wills providing unequal distributions between adult children. There are many different reasons for doing so, but in most cases there is concern about whether an adult child who has been excluded from benefit, or have been given less than a sibling, may have the right to challenge the Will.
James and Annabel have 3 adult children – Harry, Ned and Nell. James and Annabel would say that, generally, Harry and Nell have been a joy. They are both hard working, caring and supportive. Harry is married with two children and is financially comfortable, working in management. Nell lives in a neighbouring street to James and Annabel, and calls them daily. She often pops in to visit, and she and Annabel have a particularly close relationship.
However, Ned has been a challenge. He was an extremely ‘active’ child, and has bolted from challenge to challenge head-on. When he was around 14, he fell in with a ‘rough crowd’ and spent most of his teenage years and 20s partying. James and Annabel have frequently bailed him out of trouble – from smoothing things over with friends or teachers, to paying legal fees to defend drunk & disorderly and assault. In his 30s, Ned developed a fleeting off-again, on-again relationship which resulted in two children within 2 years. James and Annabel paid for his legal fees during the custody battle and property settlement. Until recently, Ned lived with James and Annabel, and they provided him with financial support. Around 6 months ago, in the midst of what James and Annabel suspect was either a binge drinking or drug induced rage, Ned burst into the home and threatened to kill Annabel. He was yelling fiercely and holding a knife. James called the police and made a report and an intervention order was made restraining Ned from being in close proximity of Annabel. Ned is unemployed and has health issues caused from heavy drinking. He is couch-surfing with mates, and the only contact he has had with his parents over the past 6 months have been Ned making demands for money due to his financial struggles.
As a result of the assault, and all the financial support they have given Ned during their lifetimes, James and Annabel would like to reduce Ned’s benefit from their Estate. However, Ned has already told them that if they don’t give him at least 1/3 of their Estate, he will definitely challenge their Wills. James and Annabel are surprised to discover that Ned may be in a strong position if he does lodge a claim. Check out our blog for more information.
Case Review – Joss v Joss  VSC 424
In September 2019, a hearing was heard in the Supreme Court of Victoria based on a fascinating case scenario. Peter Solly Joss passed away, leaving his wife Judith and their two children, Ronnie and Jessica (previously known as Jeffrey). They were an orthodox Jewish family, and Peter left an Estate valued at around $12.4million to Judith as the sole beneficiary, in addition to significant assets she held in her own name. Their daughter, Jessica, sought provision from her father’s Estate. She initially sought 100% of the Estate, and during the course of the claim, adjusted her claim to 45% of the Estate.
Peter had left supplementary documentation in addition to the Will, outlining his understanding that Jessica would not be happy with the provision in the Will, and outlining the reasons for the provisions of his Will. His letter outlined embarrassment and worry that Jessica had caused him (and his wife), and significant financial support they had provided to Jessica throughout her lifetime.
The Court initially indicated a reluctance to consider Jessica’s claim on the facts, however after reviewing her evidence, Hollingworth J essentially determined that, although Jessica had the ability to work and financially support herself, her parents’ refusal to pay for gender realignment surgery had been an obsession for Jessica, and this fixation had prevented her from participating in the workforce for around 2 decades. In the end, the Court awarded Jessica $3.225 million for her maintenance and support, to pay for gender reassignment surgery, purchase a home, a car, an income stream and contingencies.
This case was very unusual, particularly given it was an adult child successfully claiming against a parent, who was the widow of the deceased. The value of the estate and the widow’s personal wealth is likely to have played a part in this decision, however it demonstrates the importance of carefully considering the position of ‘needy’ children and the different perspectives between parents and children where relationships have broken down.
For more information about the law in this area, please check out our blog.