FRANK and Betty have been in a de facto relationship for 20 years.
Frank has three children as a result of a previous relationship.
Frank seeks legal advice regarding his estate planning and in particular, how he can make a Will that “looks after” Betty, while preserving his estate for his three children.
The solicitor advises Frank that he can make a Will which grants Betty the right to reside in his home and the right to relocate to alternate accommodation, if appropriate, under the authority of his executor.
When Betty passes-away, Frank’s estate can then be distributed to his children.
Frank decides that his solicitor’s advice should be followed, as it properly caters for Betty and his children.
He decides that the rest of his estate should go to his children and makes arrangements for his superannuation to be paid to Betty when he passes-away.
When Frank dies several years later, he owns two houses, a large investment portfolio and a substantial superannuation fund.
When Betty discovers the contents of Frank’s Will, she is disappointed, believing that she should receive the home in which they reside “outright”, to do with as she pleases.
She commences action against Frank’s estate.
During the course of a three-day hearing, Betty states that Frank had promised her that she would receive the home outright.
During a lengthy cross-examination, Betty is questioned about the “promise”.
The Court expresses some concerns regarding Betty’s credibility but does not consider her conduct to detract from her case.
The Court acknowledges that in the circumstances, Frank had a duty to Betty to provide her with the “security of a home” and a fund to live in a “style to which she was accustomed”.
However, the Court also acknowledges that Frank’s Will should not be disturbed unnecessarily and that Frank also had a moral obligation to his children.
In dismissing Betty’s claim, the Court ultimately decides to give weight to Frank’s “judgment as manifested in his Will”, stating that he was in a “better position” to determine his obligations to Betty and his children than the Court.
This fictional column is not legal advice.
By Manny WOOD, Solicitor
