Creative estate judgement
BOB passes away, leaving a de facto spouse, Michelle and two adult children, Tina and Chris.
Bob's will appoints his children as executors. The will grants Michelle the right to reside in Bob's house until she "may marry or enter into a de facto relationship" provided she pays all rates, taxes and insurance and keeps the property in reasonable repair.
Michelle also receives the sum of $15,000 and Tina and Chris receive the balance of his $1 million estate, consisting of a number of parcels of real estate and $200,000 in cash.
Michelle is concerned that if she needs to move out of Bob's house, she will not have the funds to comfortably relocate. She is also aware that she may need to acquire an interest in a retirement home and that Bob's will makes no provision for her in this regard. Michelle is also concerned about what would happen to her if she entered into another relationship.
Michelle commences court action, claiming that the provision that she receives from Bob's estate is not "proper and adequate".
The court recognises that Michelle and Bob had been in a relationship for around 30 years, that Michelle had a life expectancy of a further 20 years and that her relationship with Bob's children was a hostile one.
The court ultimately orders that Michelle receives the house "outright" and the sum of $40,000. The court also takes the creative approach of awarding Michelle an additional $120,000 by way of a loan from the estate, repayable upon her death and secured against the house or any other interests in property that Michelle may have in the future.
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