As solicitors practicing in the area of wills and estates, we are forever warning clients of the risks of wills being contested.
Such warnings are reflected in the unfortunate situation in which the family of Bob Hawke, Australia’s 23rd prime minister, now find themselves.
Before turning to the Hawke family situation, it is necessary to discuss the two primary ways in which the contesting of a will can occur.
The first, less common way is for a disgruntled beneficiary or would-be beneficiary to contest the validity of the entire will on the basis that the document is not valid. Such invalidity could stem from one of two broad categories:
- Problems with the document itself: This could include circumstances where the document was not witnessed properly, not prepared by a qualified solicitor, or not witnessed in accordance with the provisions of the Succession Act. This is a compelling reason as to why ‘will kits’ and other ‘do-it-yourself’ options are never a good idea
- Issues relating to the state of mind of the testator (the deceased who made the will) at the time the will was made. This could be as a result of the testator having an impaired capacity to make decisions or understand the nature of their estate and the people who would potentially expect to receive a benefit. Such challenges often occur in circumstances where the testator suffered from a condition such as Alzheimers when the will wad made. Another issue with the testator’s state of mind could arise where he or she made the will under duress or undue influence applied by another person, often an overbearing adult child
Family provision claims
The second, more common way to contest a will is not to refute the validity of the document itself, but to claim that insufficient provision has been made to the claimant, which a wise and just testator in the shoes of the deceased would have made.
Luckily, there are only three classes of persons who are entitled to bring family provision claims, which are as follows:
- A spouse of the deceased — this includes married and de-facto spouses
- A child of the deceased — this includes step children (including the children of a de facto partner of the deceased) and adopted children
- Certain financial dependants of the deceased (including but not limited to dependants under 18 years of age, dependant parents of the deceased, and co-parents of any minor children of the deceased)
While members of the above classes are entitled to bring a claim, this does not necessarily mean that a court will rule in their favour. In practice, such claims are often settled before the matter proceeds to court with a payout being made to the claimant, often to the considerable distress of the beneficiaries, in order to avoid a situation wherein the estate assets are expended on legal fees.
In considering a family provision claim, the court will have regard to a number of factors including but not limited to:
- The relationship between the claimant and the deceased
- The financial needs of the claimant relative to the other beneficiaries —in practice this often means that the claim of a ‘failure to launch’ child is considered more favourably by the courts
- The health needs of the claimant relative to the other beneficiaries
- The age of the claimant — the needs of minor children of the deceased will be deemed to be greater than those of adult children
- The size of the estate — the court may be more willing to make further provisions in the case of a large estate which will be capable of taking care of the needs of all claimants and beneficiaries
Even a child who, for instance, has been left an equal share of their parent’s estate along with their siblings may bring a claim for a greater share on the basis that their needs are greater than those of their siblings.
The most important thing to remember for prospective claimants is that very strict time limitations apply. You must give notice of your intention to bring a claim within six months and file your application and affidavit in support within nine months or you lose your rights.
The Hawke estate
Unfortunately (or fortunately, depending on your point of view) family provision claims are a common occurrence in Australia, to the point that depending on the size of the estate, some passed-over beneficiaries see them as an (almost) free kick. This is because when such claims are settled, the parties often agree that the legal fees of the claimant are to be paid out of the estate assets.
Such thinking may have crossed the minds of the legal team of Rosslyn Dillon, the daughter of former prime minister Bob Hawke. Whilst in life Mr Hawke was known for portraying himself as a salt of the earth working class character, he left an estate worth many millions of dollars, reportedly including the proceeds of sale of a $15 million harbourside mansion on Sydney’s lower north shore.
Save for provisions of $750,000 to each of his children, it is reported that the entire residuary of the estate was left to Mr Hawke’s second wife, Blanche d’Alpuget. It is conceivable that relations between the Hawke children and Mrs d’Alpuget may have been strained since Mr Hawke famously left his wife Hazel to marry the famed writer and socialite. It is also conceivable that the relationship may not have been greatly improved after the contents of Mr Hawke’s will were revealed to his children.
Indeed, when an estate reportedly worth tens of millions is in contemplation, bringing a family provision claim almost becomes a no-brainer. Even the awarding of a relatively small percentage of the estate to a claimant in court or by way of settlement could constitute a very substantial amount of money. Furthermore, there should be no shortage of estate funds to potentially be applied in the payment of legal fees.
Having regard to the considerations listed above, it appears that Ms Dillon’s decision was a wise one.
- Mr Hawke died on 16 May 2019, so she is clearly within the six-month time limitation for giving notice of her intention to make a claim
- Ms Dillon is a biological child or Mr Hawke, so she is clearly entitled to bring a claim
- The size of the estate is reportedly large, so the court will not have to consider that making a further provision for Ms Dillon would result in other beneficiaries not being adequately provided for
- Ms Dillon reportedly had a close relationship with her father and could reasonably have expected him to have made further provision for her in his will
- Ms Dillon is reportedly not overly wealthy, so her financial needs may compare relatively favourably to those of the other beneficiaries
It will be interesting to see whether the matter proceeds to court or if a settlement is reached between the parties involved (these would include the executors of the will and all beneficiaries). While the terms of any settlement would be confidential, settling the matter quickly may be in the best interests of all involved.
Indeed, even an agreed distribution to Ms Dillon of what would in many cases be considered a nominal percentage of the total (for instance 5%, which may sometimes be considered a nominal amount of ‘go away money’) could result in her being able to live very comfortably for the remainder of her life. Nor would this necessarily constitute much skin off Mrs d’Alpuget’s nose.
Whilst the proceedings must be stressful and difficult for those involved, particularly in the light of the loss of a loved family member, in the scheme of things, many of us would no doubt see having such a large estate to fight over as not being the end of the world.