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When it's worth fighting for
Jun21

When it's worth fighting for

CREATED ON // Saturday, 21 June 2014 Author // Nicholas Stewart

Things sometimes do not work out, even when your loved one leaves a will. So what can gays and lesbians do when the matter is worth fighting for? Lawyer Nicholas Stewart has the answers.

It’s not a subject any of us like to talk about, but when a partner or a family member dies, grief and loss are one thing, disputes over inheritance are another. Indeed, the Supreme Court of NSW allocates one full day each week (Thursdays) to its “Family Provisions List”, which deals exclusively with people claiming or contesting an inheritance. That day in the court is like midnight at Stonewall every Saturday night – it’s a zoo.

Gays and lesbians are more often than not the ones who care for their parents in old age. It’s a common assumption that we will fulfil an additional role and care for our parents during their dementia, Alzheimer’s or cancer, more so than our heterosexual siblings with children, simply because we’re thought to be more capable and financially able to do so.  

Many clients we talk to don’t realise that there are laws that allow the Supreme Court of NSW to set aside a deceased person’s Will or to ignore the strict rules of intestacy (the rules that apply to deceased estates where there is no Will) to make provision for eligible people (such as children of the deceased) in relation to a deceased person’s estate.

The law says that certain eligible people (such as de facto partners, husbands, wives and children of the deceased) may apply to have a deceased’s Will set aside or ask that the rules of intestacy be ignored to make provision (or greater provision) for them, on equitable, “fair” principles.

We recently acted for a client whose father left her the family home pursuant to his Will. Our client’s mother had long pre-deceased her. The only other beneficiaries of her father’s Will were our client’s sisters (who received small cash distributions).

The estate was contested by our client’s sisters on the basis that they believed our client to be undeserving of the gift. The fight was long and drawn out but what was clear from the start was that the evil sisters had no legitimate claim to more of the estate than was given to them under the Will. Indeed, our client is single, middle aged, relatively lowly paid, suffers from a medical condition and has little in the way of emotional or financial support. Her sisters have long marriages, investment properties and stable incomes. One of her sisters has a disabled child but in the scheme of things this was not at a financial disability.

We successfully defended the claim against our client on grounds of equity.

So think about the hypothetical gay man – let’s call him ‘Timothy’ – who finds himself in middle age, having lost his father earlier in life and then being the one who cared for his mother through dementia until her death. His mother rewards him in her Will by leaving Timothy her life savings of $500,000. She leaves smaller cash sums to Timothy’s siblings. But Timothy’s brother and sister both have families and dependants, and they argue they and their children deserve a larger cut.

Among other things, the court must consider:

(a)    the relationship between Timothy and his mum,and Timothy’s siblings and their mum, including the nature and duration of the relationships;
(b)    the obligations or responsibilities owed by Timothy’s mumin relation to who she should have provided for in her Will when she died;
(c)    the nature and extent of Timothy’s mother’s estate, including any debts;
(d)    the financial resources (including earning capacity) and financial needs, both present and future, of Timothy’s siblings and also of Timothy;
(e)    any physical, intellectual or mental disability of Timothy’s siblings and also of Timothy;
(f)    the age of Timothy’s siblings and then of Timothy;
(g)    any contribution (whether financial or otherwise) by Timothy’s siblings and then of Timothy, to the acquisition, conservation and improvement of Timothy’s mother’s estate, or to her welfare, for which Timothy or the siblings were not compensated;and
(h)    any evidence of the testamentary intentions of Timothy’s mum (what she said in her Will).

The court’s job is to conduct a balancing exercise according to what is fair and equitable.

If we were acting for Timothy, we would press hard on the facts that:

* Timothy supported his mother up to her death;
* Timothy’s mother’s instructions in her Will were explicit and clear;
* Timothy’s capacity to earn more wages as a nurse is limited; and
* Timothy’s life as a single gay person is not one similar to that of a party to a heterosexual marriage that is arguably more supportive and financially secure.

No one wants to fight over money, but when a loved one dies and they leave something for you, they want you and only you to have it. That’s worth fighting for.

On the other hand, when a loved one dies and they should have provided for you because of your relationship to them, but didn’t provide, you’ll find yourself asking, ‘Do I have the resources to advance myself in life?’, and, ‘Should I contest the deceased’s wishes because their choice to exclude me is unfair?’.

This article is of a general nature and should not be relied upon as legal advice. Every case is determined on its facts and you should seek specific advice in relation to your particular situation.

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Nicholas Stewart

Nicholas Stewart

Nicholas Stewart is a lawyer and a director at Dowson Turco Lawyers in Newtown. The firm advises the LGBTIQ community on criminal, relationship, children and property matters. Visit www.dowsonturco.com.au or call (02) 9519 3088.

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