DAVID passes-away aged 65, leaving his second wife, Mary and his only daughter, Donna.

David did not have a will.

David and Mary owned a home jointly, worth $1.5 million and held joint bank accounts totalling $600,000.

These joint assets passed to Mary by way of “survivorship”.

David’s only other asset of significant value was an interest in a self-managed superannuation fund, worth $500,000.

Mary also has an interest in the fund and under the superannuation trust deed can control the distribution of David’s superannuation, which she intends to distribute to herself.

In the circumstances, Donna stands to receive nothing from her father’s estate.

She makes a claim and after a failed mediation, the matter proceeds to a two day hearing.

Donna’s lawyers ask the Court to “claw-back” the joint bank accounts and David’s superannuation into the “notional estate”, seeking an order that she receive a lump sum of $500,000.

Mary’s lawyers say that Donna should receive no provision from David’s estate on the basis that Donna received substantial gifts during David’s lifetime and she stands to receive a further inheritance from her grandmother.

The evidence reveals that David’s mother gave Donna $150,000 a few years ago and that at the time of the hearing, she was suffering from advanced dementia and unable to change her will, which gifts Donna an additional $100,000.

In assessing the parties’ financial needs, the Court hears that Mary and Donna both save relatively little on a monthly basis and that Donna, aged 35, has net assets of $100,000.

The Court accepts that Mary and Donna generally had good relationships with David, despite “ugly” elements of Donna’s behaviour after her father re-partnered, although the Court did not consider this to be “disentitling conduct”.

The Court states that it would not be appropriate to make orders regarding David’s superannuation but in “balancing” the parties’ respective needs, awards Donna $300,000 from the joint bank accounts and orders Mary to pay her an additional $100,000 within 12 months.

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

This fictional column is not legal advice.

By Manny WOOD, Solicitor