TANYA moves in with her grandmother, Helen, for several years before she signs a rental agreement and continues to stay there until Helen’s death.

Helen makes a will, dividing her estate equally amongst her children and Tanya, with the effect that they each receive a quarter of her estate.

When Helen makes her will, she also executes a Power of Attorney appointing Tanya as her attorney, so that she can manage her grandmother’s financial affairs.

During her occupation of Helen’s home, Tanya provides some care for Helen and cooks her meals.

Six months before Helen’s death, Tanya takes Helen to her bank and withdraws $100,000, being Helen’s life savings.

These funds are spent by Tanya shortly thereafter.

When Helen passes-away, her home is worth $2 million.

When asked to move out of the property, Tanya becomes concerned that her one-quarter share of the estate is not sufficient for her to purchase a home.

She makes a “family provision claim” against the estate, seeking a greater share.

A Court-ordered mediation is unsuccessful and a four-day hearing ensues.

The executor’s position is that Tanya should not receive anything further from the estate and that she should also repay the $100,000 withdrawal.

After a careful analysis of the evidence, the Court finds that there was a strong relationship of “trust and confidence” between Tanya and Helen because Tanya was not only Helen’s carer, but also appointed under a power of attorney to manage her affairs.

In the absence of Helen obtaining legal advice in relation to the $100,000 “gift”, the Court orders that Tanya took advantage of the deceased’s position of “special disadvantage” and orders that the gift be repaid due to “unconscionable conduct”.

However, in considering Tanya’s family provision claim, the Court decides that whilst she obtained a benefit by living with Helen and paying a reduced rent, the repayment of the $100,000 would leave her with “inadequate provision” and makes an award in Tanya’s favour in the sum of an additional $100,000 on top of her entitlement under the will.

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