Will fights taking toll on estates
VICTORIA'S rules surrounding wills are long overdue for reform, lawyers say, with neighbours, carers - and in one case an interstate housesitter - able to join a host of long-lost relatives who can legally challenge for a share of an estate.
Anybody can technically lodge a claim for a share of a dead person's estate invoking so-called family provisions, says the chairwoman of the Law Institute's succession law committee, Kathy Wilson.
She complains the situation is now so open-ended it is resulting in uncertainty for beneficiaries who are expressly provided for in a will.
''One of the greatest problems we have is the class of people who can now make a claim on an estate in Victoria,'' she said.
''And it's not always about the money: sometimes people are fighting for their place in a will-maker's life.''
Her remarks come as the Victorian Law Reform Commission embarks on an 18-month review of key aspects of succession law - including revisiting the most liberal rules in the nation on who can mount a challenge to a will.
In ordering the review, state Attorney-General Robert Clark has also expressed concern about mounting costs, saying ''if the law relating to wills and the administration of estates is not clear, it can quickly become a source of stress and conflict for families''.
Retired judge David Jones, chairman of the commission, acknowledged there was a range of vexed issues to tackle and attempts over the years to have greater uniformity between the states and territories had been elusive.
A case last year neatly illustrates the dilemma over family provisions: a Keilor woman and her son, by another man, challenged the will of a deceased Sunbury bachelor, 66, who left his estate worth more than $2 million to his elderly siblings and nieces and nephews.
While the woman said she was engaged to the man and had been in a relationship for a decade, they had never lived together and did not publicly acknowledge the relationship.
Her application to the Supreme Court was opposed by the executor of the man's estate, State Trustees, and his beneficiaries.
The State Trustee said the woman and her son were nothing more than friends to the dead man and although he loved the little boy, he loved him like any other children ''and felt sorry for him''.
After a legal battle, the court found in her favour and awarded her $450,000 and her nine-year-old son, who made a separate claim, received $400,000.
Ms Wilson, special counsel at the law firm Aitken Partners, said with changing family structures the law had failed to keep up with changing family relationships.
''There are many more blended families and the idea of family itself has changed,'' she said.
But lawyers believed for greater certainty it was best to come up with a definitive list of people who could use family provisions to challenge a will, rather than permitting a broad range of claimants from neighbours and housesitters to business partners to make a claim.