Sentimental, the law is not

Happy New Year everyone, we hope that you and your family had an enjoyable break. 2020 was an incredible year which turned our lives upside down and altered our expectations forever. The threat of Covid 19 caused enormous stress to families, particularly to the elderly and the vulnerable in our society. We have all had to quickly adapt and utilize technology to our advantage and ensure that our economy continues to run albeit in a reduced capacity.

Our integral focus is on the outcomes that clients seek when giving legal advice and drafting legal documents. However, in the process of providing our assistance, it can be hard to explain that the law is a very tough task master, leaving little to no scope for moral or sentimental application. This is incredibly relevant to the preparation of a comprehensive estate plan. Assumption is the death of certainty therefore it is extremely important to cross check the facts with a fine-tooth comb when drafting an estate plan.

This includes:

  • Reading the Superannuation Fund Trust Deed to see what binding nominations can be made

  • Checking the balance sheets for companies and trusts in order to see what loans are repayable by or to the estate

  • Checking all the circumstances of potential beneficiaries who may be entitled to make a claim on your estate

  • Preparing all necessary evidence to ensure your Will is enforceable i.e is there a medical certificate to prove capacity

In addition to our research, we like to read Probate cases from earlier times as it provides a great deal of context as to the way courts interpret facts, apply the law and make judgements. It is important to note that judges will not apply a test of what is “fair” or “moral” as they will and must apply the law.

The case of Re Farrar’s Application Probate Division Court of Appeal 1966 is a compelling example. A wife was provided a house for herself and her five children by the husband, a surveyor, subject to a mortgage to a building society. The husband left and took up residence with his mistress elsewhere. He continued to pay the mortgage until he became very sick and made a new Will. He appointed his friend and surveyor as Executor leaving his entire estate to his mistress, and nothing for the wife and his children. When he died the Executor refused to pay the mortgage and the building society proceeded to give notice to take possession and sell the home. The wife gave Notice of a Claim for herself and the five children on the estate and sought an order from the court that the Executor must continue to pay the mortgage so that the house could be preserved, so they can continue to occupy it as their home. The registrar initially made an order that the Executor must continue to pay the mortgage. The court at first instance agreed and ordered the husband pays the costs. On appeal the Court found otherwise and concluded that the Executor was not obliged to continue to pay the mortgage, the house could be sold as a normal asset and that the wife could and should make an application for further provision from the estate in the normal course.

Justice Russell remarked: “I hope I do not appear unsympathetic towards to former wife and the children in their present situation, but I take this to be a court of law and not a court of sentiment and in accordance with law her case must fail.”

You can see that the application of the law will always be without consideration of fairness or moral high ground. It is a strict and unemotional application of the law. To make assumptions about the strength of a case, the goodwill or another party, the moral fibre of a relative or best intentions, is to ignore the harsh reality of the approach by the courts.

Our recommendation is to plan carefully, invest time and money in advance and make sure you prepare all necessary evidence to put your Will in the best position you can. Call us now to talk about how you can achieve this peace of mind regarding your estate plan and the commercial outcomes you want. Cheers