Charity v Son – Dad’s Will challenged
Dead Zopito Di Cesare left everything to charity. His son, Ivano Ferrante last week filed a Supreme Court writ against the charities.
Usually, a son argues that he wasn’t getting enough out of his Dad’s Will and asks the court to rewrite the Will (see here).
However, the son took a novel approach, which is a warning to all professionals.
Dead Dad wanted to help children – but not his own.
In making his Will, Dad asked his lawyer to find charities that “only” benefit disadvantaged disabled children. But, according to the son’s writ, the chosen charities had wider “objects”. The charities also supported Aboriginals, ethnic groups and people with chronic illness.
Most charities’ objects are couched in similarly wide terms.
If successful, the Will remains valid but that gift fails, and falls into the clutches of the next of kin – being the son.
The son’s second attack is that his dad didn’t sufficiently understand English. If successful, the Will is totally thrown out and an older Will or Government imposed Will then applies.
These are the 5 questions on our website to ask to avoid your Will being attacked:
1. Have you suffered a stroke or depression?
2. Do you have any children outside the marriage?
3. Where were you born?
4. What is your native language?
5. Can you read and write English fluently?
We will let you know what happens when the Court hands down its decision.
How to Challenge a Will
Courts are generally reluctant to interfere with the deceased’s intentions expressed in a will. However, legislation exists in all Australian States and Territories that enables specified people to apply to the court for provision, or further provision, from the estate of a deceased person. Changes are only made where the provisions of a will or the intestacy rules, or a combination of the two, fail to make adequate provision for the proper maintenance and support of the applicant.
In most jurisdictions, the following people can challenge a will:
- legal spouses, including divorcees from a spouse, that are receiving maintenance;
- de facto spouses. Courts normally examine the circumstances of each case taking into account evidence of a relationship, whether the de facto was being maintained, whether the de facto was considered part of the deceased’s household and whether the deceased has a moral responsibility for that person. Great care needs to be taken when applying these standards as the criteria for de facto varies from jurisdiction to jurisdiction;
- children of the deceased of any age. The ability of stepchildren to apply for family provision varies from jurisdiction to jurisdiction; and
The courts have substantial powers to alter a will’s original distribution after considering the individual circumstances of each applicant. The court decides whether a distribution failed to make adequate provision for the proper maintenance, support, education or advancement of the applicant.
Consider the “moral duty” in these 2 cases, Vigolo v Bostin (2005) 79 ALJR 731 and Lloyd-Williams v Mayfield  NSWCA 189.
In Vigolo v Bostin, Vigolo was the son of a wealthy farmer. After a dispute, Vigolo and his father signed a deed where Vigolo was compensated for the value he had added to the farm. The father died. The father’s will made no further provisions for Vigolo. Vigolo challenged the will under the relevant State act. He contended that he had a “moral claim” arising from previous business and family dealings. Vigolo and his wife already owned substantial assets. The claim by Vigolo was considered in light of the obligations and bequests his father had made to Vigolo’s 4 siblings. The High Court held that Mr Vigolo was left with adequate provision for his proper maintenance and advancement in life and the challenge was rejected.
In Lloyd-Williams v Mayfield, Ms Mayfield was the daughter of Mr Stewart, who died without leaving a will. Ms Mayfield was entitled to a percentage of her father’s estate under the intestacy laws. However, most of Mr Stewart’s wealth was in assets jointly owned (see [15 305]) with his second wife. Ms Mayfield only received a few thousand dollars while the wife received all the assets that were jointly owned. The wife died shortly afterwards leaving everything to her niece (Ms Lloyd-Williams). The estate was worth over $8 million. Ms Mayfield challenged the wife’s will, claiming that she was entitled to some of the jointly owned property. At trial and on appeal, the court agreed and awarded Ms Mayfield $850,000.
In Vigolo, the court believed that the applicant had received a substantial provision during the testator’s life. Further, even though the estate of the deceased was substantial, the assets of the competing beneficiaries outweighed the needs of Vigolo. In Mayfield, although no testamentary promises were made, the estate was large and the only competing beneficiary received a considerable proportion of the estate.
Should a court resolve to vary a will, the judge must then decide the size of the provision that should be made. In making a determination, consideration is given to:
- estrangement from, or poor relationship between, the applicant and the deceased;
- the conduct of the applicant towards the deceased;
- the overall size of the estate; and
- the age and circumstances of the applicant.
The area that is the most contentious in the area of family provision is that of adult children. Court decisions vary between amending a will simply because the relationship exists, to varying a will only where a special need is demonstrated.
If an executor becomes aware that a will may be challenged, he or she should postpone distribution of the estate. Reasonable periods of postponement are set out in each particular jurisdiction in Australia. If the executor has obtained a grant of probate, the executor is entitled to call in the assets and pay debts. If the will is successfully challenged, the Supreme Court does not render it null and void. It merely exercises the power to merely apportion the estate differently to the terms set out in the will.
If you have any further questions please contact us. We are a law firm so we can give legal advice.
Dr Brett Davies, CTA, AIAMA, BJuris, LLB, Dip Ed, BArts(Hons), LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
39 Stirling Highway, Nedlands, WA (Post Office Box 5169, Dalkeith, WA 6009)
Direct: 08 6389-0400
Reception: 08 6389-0100