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COURT RULING ON WILL SHOWS IMPORTANCE OF EXPERT ADVICE


10/02/2016


When two adult children were upset their mother had left the bulk of her $1.1 million estate to a healing guru they decided to challenge her Will in court. This bequest was on top of $800,000 she had given the self-proclaimed healer of ‘esoteric medicine’ before she died.

Joshua Crowther, Law Society Accredited Specialist in Wills and Estates at Stacks Law Firm, says the children faced several options in challenging their mother’s Will.

“They could try to convince the court that their mother lacked capacity when she wrote her Will. To establish this they’d need medical confirmation of dementia or some other incapacitating condition,” Mr Crowther said.

The children didn’t have this medical evidence, so the next option was to prove their mother did not know or understand what she was signing. However, before her death, the mother had made a video explaining clearly why she was leaving the bulk of her money to the healer saying he had done so much for her wellbeing and she wanted him to go on to help others.

“The video was an excellent way for the mother to establish her clear intentions. It also effectively blocked the challengers’ option of proving coercion or duress by the main beneficiary.”

The mother also said in the video she had explained to her children why she was leaving money to the healer and sought their assurance they would respect her wishes and not challenge the Will.

This left family provision proceedings as the only avenue available to the children. However the mother had left each child $250,000. The court found this was a “sizeable deposit” and didn’t accept the argument the Will didn’t provide adequately for the children who were seeking $400,000 each. The court ruled against the challengers.   

“Generally, the court does not like to change a Will as it views testamentary freedom as very important,” Mr Crowther said.

“If the mother hadn’t left anything to the children and if evidence, including video footage, wasn’t available, then the court would probably have given the children something. But it held that the children had received a reasonable portion which satisfied the mother’s intention.”

“This case proves that it is very important to get specialist legal advice when deciding to not divide your estate equally among the children. Often ancillary statements that are only to be opened if a claim is brought by a child are important to include with Will papers because it gives the court evidence of the testator’s intentions. The video was also good use of evidence and clinched the case for the deceased.”



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