DAVID, 70 years of age, has three daughters.

He makes a will, leaving one of his daughters, Penny, just $100 and leaves the rest of his estate to his other two daughters equally.

David’s will sets-out the reasons why Penny receives only nominal provision.

It states that David had assisted Penny in renovating her house, funded an overseas trip and that she had recently engaged in threatening behaviour, which led to an AVO being made against her.

When David passes-away ten years later, leaving an estate worth $500,000, Penny commences action against his estate, seeking further provision.

She says that David was an alcoholic and that the statements made in his will are false.

Penny’s affidavit demonstrates that she has substantial financial needs and she seeks an order that she should receive 25 percent of David’s estate.

During the course of a three-day hearing, a number of witnesses are called.

The Court ultimately rules that Penny had engaged in “disentitling conduct” and dismisses her claim on the basis that she is also liable for payment of the legal costs involved in the proceedings.

Whilst this particular matter involved a relatively small estate, it is not common for a plaintiff, such as Penny, to make a claim that is entirely unsuccessful.

Although it is not recommended that a will should make only nominal provision for a beneficiary, as opposed to just leaving them out entirely and it may not be appropriate to record your reasoning in your will, this case demonstrates that it is important to preserve evidence regarding the will maker’s intentions.

A separate letter setting-out your reasoning or a statutory declaration can be useful in documenting your reasons for disinheriting a child.

Evidence from other witnesses can also provide effective ammunition to defend the claim and it is recommended that documentary evidence is preserved and retained, ideally in safe custody with your will.

Email Manny Wood, Principal Solicitor at TB Law at manny@tblaw.net.au or call him on (02) 66 487 487.

This column cannot be relied upon as legal advice.

By Manny WOOD, Solicitor