family provision orders<\/a>, which allows current or former dependants of a deceased, among others, to seek a larger slice of the inheritance pie if inadequate provision was made for them in a will. The court makes such orders on a needs basis.<\/p>\n\u201cThey submit that their legacies of $600,000 each are [comparatively] paltry,\u201d the judge said.<\/p>\n
Their younger brother argued they had \u201cnot made out a case for unmet financial needs\u201d, Hmelnitsky said, and giving them more would \u201clikely jeopardise his ability to keep the farm intact\u201d. This was contrary to their father\u2019s wishes.<\/p>\n
The youngest son is required to fund his siblings\u2019 legacies by paying into the estate the $1.2 million he agreed to pay for the land.<\/p>\n
\u201cThe fact that [he] is struggling to make sufficient profit to fund the … legacies shows that any further provision may require the sale of land,\u201d Hmelnitsky said.<\/p>\n
Loading<\/p>\n
Ultimately, the judge found that adequate provision had been made for the elder son, but not for the daughter. He considered she should receive a further $300,000, but deferred making a final order pending further submissions.<\/p>\n
Hmelnitsky said the elder siblings had \u201cbeen leading entirely separate lives\u201d from their father for many years before his death, and neither had been financially dependent on him since they were students.<\/p>\n
The father had a \u201csincere and abiding interest in ensuring that the farm was not split up\u201d, the judge said.<\/p>\n
What the law says<\/p>\n
Ines Kallweit, an accredited specialist in wills and estates law and a principal at law firm KHQ Lawyers, said the decision confirmed that a will-maker is free to leave their estate to whoever they wish.<\/p>\n
\u201cThis means that a parent does not have to treat children equally or be \u2018fair\u2019 to them, although treating children equally is the first step to avoid family disputes,\u201d Kallweit said.<\/p>\n
\u201cHowever, [the will-maker\u2019s] freedom is limited by their moral duty to make adequate provision for the proper maintenance and support of certain close family members. This is usually the spouse and children, but it can be other people depending on the relevant legislation in each state and territory.\u201d<\/p>\n
Kallweit said that \u201cthis principle goes back to the Charles Dickens days when widows and children ended up in the poor house because an estate was left to the oldest male relative\u201d.<\/p>\n
Loading<\/p>\n
\u201cAt some point, society formed the view that if there are sufficient assets in an estate to provide for the spouse and children, then the support should first come from the estate before the family relies on the public purse.\u201d<\/p>\n
It was often difficult in cases involving large farms for a will-maker \u201cto \u2018be fair\u2019 to all children without splitting up the farm and making it unviable\u201d, she said.<\/p>\n
A will-maker might regard a child who had \u201cbeen working on the farm for years … as the natural beneficiary of the farming properties\u201d.<\/p>\n
\u201cIf there are insufficient assets in the estate to satisfy the other children, and the will-maker has not planned ahead, conflict is usually inevitable,\u201d Kallweit said.<\/p>\n
Start the day with a summary of the day\u2019s most important and interesting stories, analysis and insights. Sign up for our Morning Edition newsletter<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"The elder son and daughter were unhappy with their share of the family assets and took court action…\n","protected":false},"author":2,"featured_media":300988,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[14],"tags":[45,49,48,133,131,132],"class_list":{"0":"post-300987","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-personal-finance","8":"tag-business","9":"tag-ca","10":"tag-canada","11":"tag-finance","12":"tag-personal-finance","13":"tag-personalfinance"},"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/posts\/300987","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/comments?post=300987"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/posts\/300987\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/media\/300988"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/media?parent=300987"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/categories?post=300987"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/ca\/wp-json\/wp\/v2\/tags?post=300987"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}