Commence an Inheritance Act claim: Can undue influence lead to an effective marriage?

Three children expected to inherit their father’s assets when he died, he having been ill with a

fatal illness for some time. A few days before he died they found that he had married his

carer in a civil ceremony. He was supposed to have been so unwell that he could not stand

up. He got his new “wife” confused with his sister, leading to comments that “he did not

know what he was doing”.

What was worse was that he then made a Will leaving everything to his new “wife”. The

children want to challenge the Will and know about their rights.

Comment by Specialist Wills & Estate Lawyer Terry Johansson:

The first issue is whether or not she is a wife: If not, she would simply be someone who has

lived with him for three or four days, and although this may give her some right to challenge

the Will, her rights will not be strong. A family lawyer should be consulted to see whether or

not they can contest the validity of the marriage. If the marriage is invalid, the wife may still

claim to be entitled under the Will, but because the Will described the person to benefit as his

“wife” she may not be entitled if she is not legally married to him. There is also the question

as to whether the Will is valid anyway. The children would be best advised to get advice as

to whether they can challenge the Will as a backup claim and pursue the other avenues.


Application of the Intestacy Rules: Rights of “Wife” if marriage is invalid

When their father died, his children were shocked to find that he had secretly remarried a

woman from a foreign country. He did not leave a Will and the wife claims that under the

Intestacy Rules she is entitled to the whole of the house. There has been a whisper that she

was already married to another man and has not been divorced.

Comment by Specialist Wills & Estate Lawyer Terry Johansson:

Legal advice should be obtained as to whether the “marriage” to the father was valid or if any

previous marriage had not been properly terminated, then this marriage would be invalid and

she would not take everything under the Intestacy Rules as a “wife”. But she may be able to

make a claim instead as a partner so long as she has lived with him for more than two years.

If she has not done that, then she may have a right to challenge the Intestacy Rules claiming it

as unfair that she receives nothing.


Commence a Will Contest Claim: Ex Partner Claims Old Family Home

A woman who had lived with a man for many years separated years ago then she remarried.

When they separated she promised to leave the man half of the house when she died. She did

not do that and he now finds that the house goes to her children, with nothing to him or to the

new husband.

Comment by Specialist Wills & Estate Lawyer Terry Johansson:

In this case the man will need to fit within a category of claimant in the State in which the

claim is to be brought. Some States will permit an ex-partner to bring a claim and other

States won’t. If he does qualify, then he should be in a good position to claim that she should

have provided for him in line with the agreement. However if he is already wealthy he will

have no financial need, and it still may be difficult for him to prove the obligation. He has an

added problem in so far as the new husband who has also been left nothing has a much

stronger claim to a share of the property, because he was in a relationship with his wife, when

she died, and has received nothing. His claim is stronger than that of any of her children.

The ex-partner would be wise to obtain legal advice as to whether he has any equity in the

property, by virtue of the arrangement, especially if he helped buy it, and if so, this will be

probably a stronger claim than a claim brought for further provision by contesting the Will.


A late application problem: out of time: Executor induces beneficiaries not to contest Will

A father had a great deal of confidence in his eldest daughter, who he appointed executor of

the Will and left everything. There was nothing in the Will, but he made it clear to his

lawyers, and to the family and family friends that the daughter was to share the assets equally

with her younger brother. After she obtained Probate, she kept promising to give the brother

half, but never did, and after the six months had expired from the date of Probate, she then

told her brothers that she was not going to give him anything as there was no provision in the

Will requiring her to do so. In the State concerned the limitations period has expired and the

brother now would like to bring an action to contest the Will, saying it was unfair to give

everything to the sister.


Provided the brother acts quickly, before the assets are distributed, or otherwise as soon as

possible, and is able to prove the promises made by the daughter, the Court should be

persuaded to allow the brother to bring an application late. A legal opinion should be

obtained from a barrister before commencing the action.


An estate administration issue: Rights of beneficiaries when trustee makes error

It is not uncommon for beneficiaries taking under a Will, or for people who take under the

intestacy rules, to be unhappy with the progress of the finalisation of the estate, and the way

things are handled. All beneficiaries have a right to request information from the executors

as to how the estate is being administered, and to insist upon it being done within a

reasonable time. An application can be made to the Court in the event that the executor is not

handing it properly, and orders made by the Court for the executor to comply with. The

orders may be to finalise the administration, produce accounts, sell property, or it may be

possible to have the executor removed in some cases.

If the executors make a mistake, then an action may be commenced, claiming negligence, and

damages from the executors.


The Courts are most reluctant to replace executors, unless there has been wrongdoing, or it is

almost certain to occur. Beneficiaries should avoid making applications to the Court unless

the executor has clearly delayed or done the wrong thing, as otherwise the beneficiaries may

end up with a cost order against them for the costs of the hearing.


Commence a contested will claim: Court confirms principles for claims by adult children

Name of case:

Taylor v. Taylor & ORS [2016] WASC 71

In this application to the Court, a son made an application for further provision from the

estate on the basis he had been cut out of the Will by his father.

The main beneficiary of the estate was one of the father’s other sons, who had cared for the

father for some time.

The estate was of modest value, being approximately $560,000.

The Plaintiff son and his wife had joint assets of about $400,000, and a pre-tax income of

$118,000 a year.

There was some illness, but the Judge considered that “really what the Plaintiff is claiming is

a top-up from the deceased’s estate which will allow him and his wife to live with a degree of

comfort and certainty into the future”.

After considering all of the issues, and principles laid down by the law, the Judge held that

the “Plaintiff has an adult son, has sufficient, both by way of assets and income, not to

warrant further distribution from the estate”.

The Judge listed a summary of the principles applicable to claims by adult children, which

are set out below.

For a convenient summary of the principles applicable to claims by adult children, see Braun

v Australian Executor Trustees Ltd [2014] WASC 210 at [11], which the judge referred to.

In short:

(a) The relationship between parent and child changes when the child leaves home; the

child does not cease, however, to be natural recipient of affection or support;

(b) The community expects parents to raise and educate their children to the very best of

their ability while they remain children; probably to assist them with a tertiary

education where that is feasible; where funds allow, to provide them with a start in

life such as a deposit on a home or assistance in some other form;

(c) Generally the community expects a parent where a child falls on hard times, and there

are assets available, to provide a buffer against contingencies or to assist with


(d) If the applicant has an obligation to support others, that will be a relevant factor in

determining appropriate provision;

(e) There is no need for an applicant child to show special need or some special claim;

(f) An adult child’s lack of reserves to meet demands, particularly of ill health, is a

relevant consideration as is the applicants inability to earn a living or to earn anything

more than a limited living;

(g) The applicant has the onus of satisfying the Court of the justification of the claim;

(h) Equality between children does not necessarily provide an appropriate guide as to

appropriate provision in respect to a particular claim;

(i) There is no obligation on a parent to equalise distributions made to his or her children.


Infant grandchildren may claim but not in lieu of a parent

Mary’s father recently died. She is middle aged.

Mary has one sister who is alive, but her brother Harold, died many years ago.

Harold had three children, who are aged 10, 11 and 12.

During the life of Mary’s father, he supported Harold’s three infant children, who were taken

in by another relative. The grandfather paid their school fees, living expenses and the like.

As they were dependent upon their grandfather at the date of death, it would seem that they

have a strong claim against their grandfather’s estate but they will need to get a relative to

stand in and claim for them.

The amount that they get bears no relation to their deceased father’s position in the family.

There is no automatic rule that they should get 1/3 of the estate, by claiming what their father

would have received it he was alive, and in fact they could get more or they could get less

than 1/3.

Comments by Terry Johansson, Specialist Wills and Estates Lawyer, CWPL

The primary issue here is that the grandchildren were dependent upon their grandfather at the

date of death, and it is only then necessary to see whether they can fit into a class of applicants in

the State in which they live. In some States grandchildren are specifically able to bring a claim,

and in other States they may be successful in bringing a claim by virtue of being a dependent at

the date of death.


Commence a Will Contest Claim: Mother transfers property to one child prior to death

A son finds that many years ago his widowed mother transferred her property to her daughter,

his sister. Now, the mother has passed away, the son finds that there is nothing to pass under

the Will, and everything is effectively already in the name of the daughter.

He said that the Will may be invalid but this does not change the position for him. There is

nothing in the estate to pass to him so there is no point in arguing as to whether the Will is

valid or not valid.

He does not believe that there is anything technically wrong with the transfer and he believes

that his mother did the transfer of the property to her daughter through her solicitor with full

knowledge of what she was doing.

He will try and see whether there are any other assets against which he can claim but

otherwise, commencing a challenge to the Will will probably fail.

Comments by Terry Johansson, Specialist Wills and Estates Lawyer, CWPL

Even if a person is successful in contesting a Will, if there are no assets in the estate, any Court

Order in their favour will be ineffective. As the house was transferred some time ago, it seems

that his application cannot help him to retrieve that property. Careful legal analysis needs to

focus on whether the mother had legal capacity to transfer the property to the daughter, but

based upon the facts, it would seem that she did.


An estate administration issue: Executor lives in estate property – delays sale

A mother died leaving her house to her four children, and appointed one of her children as


The executor promptly moved into the house and has lived there for 3 years and refuses to

sell the property.

The other children are now fed up and have decided to exercise their rights.

In any adjustment of the estate they will be claiming rent, and interest on that rent from the

brother who is living in the house.

As the exemption period from capital gains tax has expired, if the Commissioner of Taxation

will not extend the period within which they may sell the house free of capital gains tax, they

will sue their brother for any extra capital gains tax due to the late sale of the property.

They will need to make an application to the Court to seek orders that the brother vacate the

property and sell the property, and/or make application to remove him as executor.


Rights of Partner on Death of other half

A man was in a relationship with his long-term girlfriend for some 30 years and they lived in

one home.

When the female partner died, the man found that his girlfriend had left everything under a

very old Will to a charity.

Assuming the Will was valid, then he would have the right under the law of the State in

which he lived, to bring a claim to contest the Will on the basis that he was a surviving

partner, and so long as he had financial need, his claim should be successful.

If the Will was invalid for any reason, then he may have strong rights under the Inheritance

Rules to benefit, and as she had no family of her own, he should end up with the whole of the