In this post, Tonkin Legal Partner Shane Williams discusses a recent case of a contested will that shows that that just because an estate is large, doesn’t mean a challenge will be successful.

The Will

When Geoffrey Steinmetz died, he left an estate of around $5.25 million - with another $1.4 million in superannuation.

His widow, Gayle, was with him and with Geoffrey’s lawyer when the deceased’s Will was read aloud to them in a hospital room. 

The Will gave Gayle an indexed annuity of $52,000 (with a net present value of $880,000).  The deceased sought an assurance from his lawyer that his children, as executors, were legally obliged to keep paying the annuity to Gayle.

He asked Gayle ‘Are you happy with that?’.  She replied with words to the effect of ‘Yes, but I keep telling you Geoff that I do not want anything from your estate’.  That evidence was not contested at the subsequent Court hearing. The deceased then executed the Will in Gayle’s presence.

The balance of Geoffrey’s estate was given to his two children (Nicole & James) from his first marriage.  Nicole and James were also the executors of the deceased’s estate.

The Case

Gayle subsequently sued Geoffrey’s estate alleging that the provision for her in the Will did not make adequate provision for her proper maintenance or advancement in life.  She requested that the Court award her a capital sum of $2 million.

Gayle’s total net asset position was $750,000.  She owned her own home (mortgage free) and $300,000 in superannuation. Additionally, she had approximately $138,000 in cash or term deposits, a motor vehicle valued at $14,000 and nominal holdings of shares.  Aged 65, Gayle’s gross annual income was $81,146 – consisting of the annuity of $52,988 and superannuation income of $28,158.  Her net annual income after tax was $71,704 and her annual expenditure was $37,750 (which included a $5,000 provision for holidays), leaving an expected annual surplus of approximately $34,000.  Gayle was ‘thrifty, prudent and organized’.

The Verdict

The Court noted that Gayle probably changed her mind after the Will was signed ‘when she became aware of the size of the estate and the extent of the deceased’s [generosity to his children]’.   

Also of significance were the comments made by the judge that Gayle ‘was not an impressive witness and I was not confident that she was always entirely truthful.’ 

It was also noted that during their relationship they each kept their own residences – ‘she moved between the deceased’s home and her home.  As did he.’   And they also ‘retained their respective financial independence.  She had her property, her superannuation, her investments, and deposits.  He had his business, his properties, and investments.  There was no suggestion of joint ownership of any significant asset or any commingling of accounts.’  As the Court remarked – ‘…the nature of her relationship with the deceased…always retained a quality of independence.  She was, in her own words, his “companion”.’ 

Justice Pembroke of the New South Wales Supreme Court found that the deceased had made adequate provision for Gayle in his Will.  The action was dismissed, and Gayle was ordered to pay the estate’s legal fees and expenses.

The Lesson

Just because an estate is large does not mean that a Will can be successfully contested – especially in a second or subsequent marriage or relationship.