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Articles and legal news from the Atkinson Vinden Team.

Surprising Wills Cases

Wills & Probate

There have been some interesting court cases during 2014 which serve as useful reminders of how complicated this area can be.

Will makers may distribute gifts in their wills which are conditional upon certain requirements being met by their beneficiaries. Some common examples include provision that a beneficiary must attain a certain age before receiving the gift, or that a daughter-in-law must still be married to the will maker’s son to receive her gift.

In Carolyn Margaret Hickin v Robyn Patricia (No 2) [2014] NSWSC, Patrick Carroll made testamentary gifts to his children conditioned upon them becoming Roman Catholics within three months of his death and his children did not comply with that requirement. They challenged the validity and effect of this condition and the Court held that the requirement for each of the children to become Roman Catholic was a condition precedent which was not void for uncertainty or impossible or contrary to public policy. Since none had satisfied the condition the gifts were divided among the contingent beneficiaries named in the Will and the children received nothing. This case shows how stringent the courts may be in enforcing the conditions for gifts left in a will. Will makers should carefully consider the conditions you impose for gifts in your will and whether they are absolutely necessary.

The circumstances in which a court will remove an executor were reviewed in Mullins-Trnovky v Adams [2014] SASC 116, where the court confirmed that touchstone is always the due and proper administration of the estate. The court noted that instances where this touchstone may be activated include the executor’s imprisonment, neglect of duties, refusal to seek a grant of probate, disappearance, mental incapacity or self interest arisen from suspicious circumstances unknown at the will maker’s death.  In this case the difficulty arose from a perceived conflict of interest arising out of the provision of allegedly negligent tax advice to the estate by one of the executors who had refused to take any further part in the administration of the estate and the court effectively allowed for his resignation by revoking the grant. Your choice of executor(s) is a serious one, and should be someone who you trust to deal with your entire estate and who you think will be entirely reputable as well as capable.

The importance of estate planning  and need for careful consideration in will making is increasingly complex, especially given the increase of different investment choices, the impact of digital/electronic accounts and   the willingness of many family members to seek the assistance of the courts to “rewrite” wills in  family provision claims. For more information on how to ensure your Will accurately reflects your intentions for the distribution of your assets after your death, please contact a member of our Estate Planning team.