MARY makes a will leaving two thirds of her estate to her son, Michael and one third of her estate to her daughter, Jane.

She appoints Michael as her executor.

When Mary passes-away, Jane claims that the will was the subject of undue influence and on the basis that Mary lacked capacity to execute the will, says her mother died “intestate”.

In the alternative, Jane seeks $500,000 by way of a “family provision” order.

Michael makes a cross claim, seeking orders that he obtains a grant of probate “in solemn form” as well as an order for rent due to Jane’s occupation of Mary’s home after her death.

The matter proceeds to a three day hearing in the Supreme Court.

The Court finds that when Mary executed her will, there were “suspicious circumstances” because Michael took Mary to the solicitors to make the will and the will was executed in his presence, while Jane was on holiday overseas.

Michael produces evidence in the form of a handwritten note by Mary, explaining the unequal provision for her children as being due to Jane being gifted a residential unit during Mary’s lifetime.

This is conceded by Jane.

The Court rules that despite evidence that Mary was prone to forgetfulness at the time the will was made, she possessed the requisite capacity, noting that the will was a “simple” will.

The Court further rules that in light of evidence that Mary had affirmed her wishes after making the will, she possessed “knowledge and approval” and dismisses the claim of undue influence.

After carefully examining Jane’s financial circumstances and in consideration of the fact that she had already received a gift of real property, the Court dismisses her family provision claim for $500,000.

The Court accepts that Jane is liable to pay rent due to her occupation of her mother’s property but on the basis that her other claims failed, Michael chooses not to press this issue.

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 only accurate at today’s date and is not legal advice.

By Manny WOOD, Solicitor