Another Will challenge case with no winner – Re: Schlink 2020 [VSC 180] (15 April 2020)

The facts

The deceased was survived by his adult daughter from a prior relationship and his partner of some 20 years. The estate was relatively modest, comprising of a house worth $650,000 and a share portfolio of $120,000.

The Will left $50,000 to the adult daughter and the balance of the estate to the partner.

The deceased had separated from the mother of his adult daughter prior to her birth but despite living in different States they had maintained regular contact during his lifetime.

The daughter challenged the Will.

The decision

The Court found that the legacy of $50,000 to the adult daughter discharged any moral obligation of the deceased to make adequate provision for her proper maintenance and support. The Court also found that the daughter had exaggerated her financial need.

The daughter’s application for further provision from the Estate was dismissed. It is likely that the daughter will be ordered to pay the costs of the Estate, although she is unlikely to be in a position to do so. This means that the Estate will have to pay the costs of defending the proceeding which are likely to equal the cash in the Estate.

Lessons

The case highlights the importance of careful estate planning when making a Will, especially in circumstances were there is a possibility of a challenge. One option available to the deceased in this case was to transfer the home which the deceased wanted to go to his partner into joint names with his partner. This would have removed it from the Estate asset pool when the deceased died and shielded it from a claim.

If you have any questions about this article or estate planning generally, please contact our Wills and Estates Team, Paul Watkins on (03) 8540 0200 or Andrea Olsson on (03) 8540 0232.