Tag: Australia

31 Jul

Undue Influence in the Context of Separation and Reconciliation

Nick Esterbauer Estate & Trust, In the News, Wills Tags: , , , , , , , , 0 Comments

A recent decision of the New South Wales State Supreme Court considers allegations of suspicious circumstances and undue influence within the context of marital separation and subsequent reconciliation.

Colleen McCullough, an Australian author famous for having written The Thorn Birds and a number of other novels, died in January 2015, leaving an estate of approximately CDN $2 million.  McCullough also left a series of testamentary documents executed during 2014 and 2015, several of which contained technical defects.  Most of the documents named McCullough’s long-time husband, Ric Robinson, as sole residuary beneficiary.  One document executed in July 2014 (and a subsequent purported codicil), however, directed the distribution of the entire estate to the University of Oklahoma Foundation (of which McCullough was a founding member).

The plaintiff, McCullough’s friend and agent who had been named as estate trustee in the Oklahoma Will, challenged the subsequent documents on the basis of lack of knowledge and approval and undue influence.  She relied, in part, upon the fact that Mr. Robinson had an affair of which McCullough had become aware in or about 2010, and that, in July 2014, she wished to disinherit him as a result of the state of their relationship around the time of their separation.  Further, the plaintiff argued that Mr. Robinson’s request of McCullough that she execute a new Will later in 2014 represented suspicious circumstances.

Notwithstanding the concerns raised by the plaintiff, the Court found that the October 2014 Will naming Mr. Robinson was valid.  Evidence in support of such finding included the involvement of McCullough’s lawyer in the preparation of the Will.  The Court acknowledged the absence of evidence that Mr. Robinson had pressured or coerced McCullough or her lawyer into preparing/executing the October 2014 Will or that her testamentary intentions remained unchanged following a reconciliation with her husband in late July 2014.  The plaintiff’s submission that a request by Mr. Robinson that McCullough make a new Will leaving him an interest in her estate after their relationship had improved was not considered to constitute suspicious circumstances and fell far short of the coercion necessary for a finding of undue influence.

This decision emphasizes the difference between influence and undue influence.  Among spouses, a degree of influence is to be expected in respect of estate planning.  Such influence does not in itself invalidate a testamentary document and may not even satisfy a judge that suspicious circumstances surround the execution of a will.

Thank you for reading.

Nick Esterbauer

19 Aug

Family Farm Succession Planning

Nick Esterbauer Estate Planning, Wills Tags: , , , , , , , 0 Comments

A recent article regarding a study by the University of South Australia suggests that the majority of family farms that are being passed on from one generation to the next are being left to sons rather than daughters.

According to the article, only about 10% of Australian farms are currently being bequeathed to daughters.  The preliminary results of the study have revealed that it is common for farm owners to leave farm property to male descendants, while other, non-farm assets are instead left to females.

The article also notes that, traditionally, sons would be required to carry on family farms (whether they wanted to or not), while daughters would rarely have the opportunity to continue living and working on a farm (even if they so desired).  In Australia and elsewhere, it appears that tradition still plays a strong role in how families are structuring their estate planning.

081916In other parts of the world, it has been suggested that the inattention to farm succession planning is a serious problem for farming families.  A survey conducted among farmers living in Ulster, Ireland suggests that nearly half (48%) of farmers do not have any plan regarding the inheritance of farm property.  Only 20% of survey respondents indicated that he or she had chosen a successor and executed a last will and testament to implement the related wishes.

Within the context of an aging population, it will become increasingly important that farmers take the time to obtain assistance in creating an estate plan to ensure that family farm properties are left to their intended beneficiaries.

Have a great weekend.

Nick Esterbauer

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