Can you challenge an unfair will?

 The High Court recently heard an appeal regarding an application under section 4 of the Family Protection Act 1955 made by a daughter regarding her father’s estate. The Respondent was the deceased’s widow, they had been in a relationship for 2 years before marrying a few days prior to the deceased passing away.BackgroundThe deceased had 3 adult children from an earlier marriage. After an acrimonious divorce from their mother, the relationship between the deceased and the applicant daughter suffered. The deceased moved to New Zealand with a new partner. Their relationship was rekindled in 2013, after her children were born, and the applicant began visiting her father in New Zealand once or twice a year.The deceased’s partner passed away in 2015. Soon after, the deceased met the respondent widow. They moved in together in early 2016 and entered into a relationship property agreement. The agreement acknowledged that the respondent widow had given up a lease to move in with the deceased.In the 2 years prior to his death the deceased was unwell and effectively needed 24/7 care which was provided by the respondent widow. She also provided companionship and there was a physical relationship.In January 2017, the applicant daughter visited her father in New Zealand. As she was leaving, the deceased took issue with something the applicant had said to the respondent about her parents’ separation. This was a catalyst for the deceased changing his Will so the applicant received a significantly smaller portion of the estate.The value of the estate was around 3.2 million comprising of an apartment, bank accounts and managed funds and chattels including a Mercedes and valuable Rolex watch. There was a Will which was executed a few days before the deceased passed away which bequeathed the apartment and other personal and household effects including the Mercedes to the respondent widow. There was no issue about his testamentary capacity. The respondent widow also received an additional $500,000 pursuant to a section 21 agreement.The applicant daughter received personal chattels worth around $10,000 and the Rolex watch worth around $51,000. The residue of the estate amounting to around $2.1million was also left equally to her two children, the deceased’s grandchildren who were 18 and 15. The other 2 daughters received nothing from the estate and did not bring an application.The applicant daughter was upset to not receive more from the estate. Particularly as there had been an earlier 2016 Will which left the majority to herFamily CourtIt was agreed by the parties that there had been a breach of the deceased’s moral duty. The Family Court Judge decided that the further provision ought to be made in a way which interfered as little as possible with the deceased’s intention and therefore left the provision to widow intact and ordered the residue to be spilt into thirds, 1/3 to the applicant widow and the remaining 2/3 to her daughters. This increased the applicant’s share from $10,000 to $700,000.High Court appealThe applicant daughter appealed on the grounds that:

  1. She should not have been awarded an amount equal to that of her children.
  2. That the Family Court Judge erred in his understanding that the award amounted to 23% of the estate because the apartment was worth more which meant she was only receiving 19%.
  3. The award was insufficient for her to purchase a debt free home.
  4. That insufficient weight was put on the previous Will and relationship property agreement.
  5. That a life interest on the apartment to the widow was sufficient to meet the moral duty to the widow.

The core of the arguments was that the award was unfair when compared to what the widow and grandchildren received. Neither the grandchildren nor the widow cross appealed. The grandchildren’s position was that the Family Court decision should remain.High Court decisionThe High Court Judgment noted that it is not for the beneficiaries of the estate to justify the bequests made to them. So, long as the award made by the Family Court was sufficient to remedy the deceased’s breach of moral duty then the deceased’s wishes ought not to be disturbed.The High Court criticised the basis of the applicant’s argument that the award was unfair and that it valued her life as the daughter of the deceased as less than the widow’s 25 months with him. The High Court noted general notions of “fairness” were irrelevant, even if the Court does not agree with what the testator has done.The Family Court decision was not an assessment or judgment of the comparative importance of the different relationships. Rather the award was that the Judge considered to be the least interference with the deceased intentions and what was sufficient to remedy the moral breach and was therefore appropriate.TakeawaysPerceived unfairness is not a ground to disrupt testamentary capacity. The Court will only disrupt the Will enough to remedy the deceased’s breach of moral duty. It is not the Court’s place to provide an award that would reflect the value of the applicant in the deceased’s life.

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