Fisk: Pancakes, Prayer and Family Provision

Fisk: Pancakes, Prayer and Family Provision

In Episode 3 (Season 2) of Fisk: “Pancakes and Prayer”, Helen meets with estranged brothers Morrie and Gordon Lowry who have recently lost their mother, Gabrielle.

After advising them that she is sorry for their loss, Fisk takes them through their late mother’s will and Morrie learns that he has been left out.

The dismayed Morrie asks “Can she do that? Just cut me out?”

Fisk responds by advising Morrie “Yes, she can. However, you would be entitled to contest the will”.

Here Fisk is referring to Morrie’s eligibility, under legislation, to make an application for provision from his late mother’s estate.

Each Australian State and Territory has legislation enabling certain persons to make a claim for proper maintenance (referred to generically as “Family Provision applications”) from a deceased person’s estate.

Whilst claimant eligibility, timeframes and other features of Family Provision applications vary from jurisdiction to jurisdiction, an adult child of a deceased person is eligible as an applicant in all jurisdictions.

The degree to which an applicant will be successful in obtaining an order for provision (or further provision) from an estate will depend on a number of factors, including:

· the applicant’s need for a share of the deceased’s estate; and

· the applicant’s moral claim to share in the estate.

Other relevant considerations include the size of the estate and any competing claims on the estate.

Generally speaking, an adult son who is in good health and able to properly maintain himself (and any dependents) and is unable to establish a special need or claim is not in a strong position as an applicant. For more on this see “Family Provision in Australia”, 6th ed, Dr John de Groot & Bruce Nickel, Chapter 4.

Inequality of provision from an estate, even if it results in unfairness, does not of itself justify a claim.

The reason for Morrie’s exclusion from his mother’s will is revealed when Ros Gruber, who assisted Gabrielle to make her will, joins the meeting and proceeds to read aloud her late client’s “Letter of Wishes”.

In her letter, Gabrielle explains that Morrie’s departure from the Bon Jovi covers band he and Gordon had formed together had left Gordon with no source of income. Their mother decided to remedy this by leaving her entire estate to Gordon.

Letters such as Gabrielle’s, which provide an explanation of a will-maker’s reasoning for the distribution of his or her estate, are not uncommon.

In New South Wales these letters are referred to as “Section 100 statements” (as Section 100 of the Succession Act 2006 (NSW) allows statements, whether in writing or otherwise, of a will-maker to be used as evidence in Family Provision applications).

In Queensland, the approach most often followed in practice is to record the will-maker’s explanation regarding the provision made in his or her will in the form of a statutory declaration.

In both cases these documents generally are stored with the will to be utilised if the need should arise (i.e. in the event that a Family Provision claim is made).

It is important that a will-maker has the assistance of a lawyer with wills and estates expertise when preparing such a statement or statutory declaration to ensure that the content of it is relevant and constructive (having regard to the matters a court will consider in determining a Family Provision claim).

The later passages of Gabrielle’s letter do not relate to the distribution of her estate but instead are parting words to comfort her sons in their loss and to express her eternal love for them.

Many of our clients, in tandem with making a will, choose to prepare such letters and to have them stored with their will, with instructions provided to their executor(s) to ensure that the letters are safely delivered to the intended recipients after the will-maker has passed away.

Inspired by his mother’s expression of her dying wish to see Gordon and Morrie “get the band back together”, Gordon volunteers to share his inheritance with Morrie, but only if Morrie agrees to return to the band.

This seems unlikely as Morrie is now a devout member of the “Church of Barnabas The Believer” and shuns any association with the “heavy metal” music scene!

The ever resourceful Fisk, who regularly tunes in to “Maureen’s Magical Mornings” on Golden Waves Radio, has only recently listened with interest to Maureen’s in-depth interview with Reverend Ledbetter regarding the “rise and rise” of Christian rock.

Hearing of the success being enjoyed by bands such as the ‘Seventh Day Avengers’ and ‘Guns and Rosaries’, she encourages Gordon and Morrie to rebrand their Bon Jovi cover band as Christian rock group ‘Living on a Prayer’. Morrie and Gordon reach an agreement they are both happy with and all ends well. We can’t help thinking that their mother would have been very proud and satisfied with this result!

And to Fisk’s great relief there was no need to have Ros Gruber further involved by referring Morrie and Gordon to Ros’ new practice, “Conch Mediation”.

Whilst we are yet to see Ros demonstrate her skills as a mediator, we do agree with her endorsement of the mediation process. Mediation can be a really useful step in resolving disputes. In fact, in New South Wales and Queensland, some form of mediation is mandatory in every Family Provision application.

Our estate litigation lawyers have a collective wealth of experience in acting for clients through every stage of an estate dispute, including Family Provision applications.

If you are faced with a need for advice regarding the resolution to an estate dispute, now or in the future, we would be pleased to assist you.

You can start the process of obtaining expert advice from us by completing our online “Estate Disputes” interview via our website

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