MY Aunt Audrey died more than six years ago and left an unusual will which I only found about this week.
It could have been like Charles Dickens’s Bleak House in which the estate of Jarndyce was disputed in the courts for generations until legal fees take the lot. Fortunately, no one challenged my aunt’s will.
Some background is necessary before you can understand why she did what she did.
During World War II, when she was in her mid-20s, she worked as a nurse in London during the Blitz. She met and fell in love with a dashing young captain, and presumed he would ask her to marry him after the war.
Alas, the dashing captain was of a different class to my aunt who was but the daughter of a butcher. The captain married someone else, but remained childless. My aunt, heartbroken, went back to Brighton where she looked after her father for the next 40 years in the council house and then lived alone in the house until one day, when she was 72, she got a call.
It was the captain. His wife had died. He had done well in business and had a house in Kent. They met and my aunt married for the first time aged 72.
Before accepting, though, she was concerned about giving up the council house she had lived in all her life. Once burned, twice shy, as the saying goes. She even rang me in faraway Australia for advice. I told her that once she married him, she would have a claim on his estate after he died, no matter what was in his will.
As it happened, before long my aunt inherited the Kent house and a bit more, too. It always pays to be nice to your penniless, childless aunts.
Suddenly, my aunt was well-off.
Alas, a lot of the money quickly dribbled away as people selling in-house security alarms and other spivs separately the widow from her wealth. Still she had the house in Kent, now mortgaged, and no children.
She had a dozen or more nieces and nephews, a sister (my mother) and a brother. So she wrote a will.
She divided her estate into 13. Three-thirteenths went to my mother and various one thirteenth shares went to nieces and sisters-in-law. Brother and nephews got nothing.
My mother died before my aunt and her three-thirteenths was divided among the beneficiaries pro-rata.
What an entertaining set of circumstances: the jilting man’s loot gets divided among the women of the jiltee’s family. There is a certain amount of justice in it, even if it is a bit quirky.
After costs and the like the estate did not amount to much, say, $200,000, so even if any of the disappointed males were minded to challenge the will it would hardly have been worthwhile. A few days in court and the estate would quickly be “jarndyced” – there’s a new verb for the legal fraternity.
Nonetheless, in these days of blended families and multiple marriages, challenges to wills are becoming more frequent.
The main challenges are coming under the Family Provision Act and challenges based on whether the testator was of sound enough mind and not under duress – and can families, helpers and hangers-on put on the pressure. You can also challenge over the interpretation of the will and the distribution of property.
All too often estates are small and judges often order that costs come out of the estate, leaving little for the intended beneficiaries. Judges should resist the temptation to take the easy way out and order costs come out of the estate. It just encourages an attitude of: “You may as well have a crack at it; you have nothing to lose.”
Under the Family Provision Act “eligible people” – mainly children, partners and parents – can seek money, or extra money, from the estate if the will does not make “adequate provision for the proper maintenance, education or advancement in life”.
But that is open to a fair amount of interpretation. As children stay at home well into their 20s these days, some parents despair of every being free from supporting. Well, in a recent ACT case, the court gave a quarter of the estate each to two children of the testator. The “children” were in their 70s, can you believe?
Incidentally, I think the female form “testatrix” – like “actress” — is past its used-by date.
In a recent NSW case, the court held that two stepsons – in their late 50s — should get a slice because they had not provided for their own retirement and faced the prospect of unemployment. Their advancement in life had not been provided for, the court said.
In cases of capacity, it is often the terms of the will which give rise to the suspicion of madness, although you don’t have to be completely mad to lose testamentary capacity. “Must have been mad to give it all to the cats’ home,” the argument runs. But there is a difference between eccentricity and lack of capacity.
Courts should start with the proposition that the testator is free to give his or her money to whomever they like. It is not a sign of madness to give money to the cats’ home. And I can’t see why adult children should automatically expect a cut, and call upon the courts to give it to them if the testator doesn’t, unless there are some extraordinary circumstances like being handicapped or forsaking employment to look after the deceased.
In my aunt’s case, there would have been a case to challenge over distribution because my mother died before my aunt and the will apparently did not account for that possibility. Should my mother’s share go according to my mother’s will; to my mother’s next of kin; or to my aunt’s beneficiaries? In Australia, the answer is to the dead beneficiary’s next of kin. But it was plain my aunt did not want her nephews to get a cracker. And, in fact, the nieces were far more dutiful come nursing-home time – as women so often are.
Mercifully, it is too late for anyone one to do anything about it, and my testator aunt, quite rightly, got her way. But it doesn’t always happen like that.
CRISPIN HULL
This article first appeared in The Canberra Times on 10 April 2010.