• Ellison Moschella & Co

Freedom of Will - Maker to Decide

Updated: Mar 9, 2021

In McIntyre v O’Regan (2015) NSW 198, under her Will the deceased aged 66 left to her son (aged 41) a $190,000 sum and left to her daughter (aged 34) a $250,000 sum.

The deceased’s carer was left household contents and the right to use the deceased’s car for one year. The residue of the estate, worth approximately $660,000, was left to the owner of a healing and spiritual training association, Mr Benhayon.

The two children applied to court seeking greater provision from the estate.

Shortly before she died, the deceased gifted $800,000 to Mr Benhayon for the purpose of refurbishing a teaching auditorium. She also gave $60,000 to her son to assist with legal expenses for child custody proceedings, and she paid $322,000 towards the purchase of a property in the name of her carer. She lived with the carer at the property for approximately the last six months of her life.

The children were not high-income earners, and both had at least one dependant.

The court determined that although the children were living in “modest” financial circumstances, and that the deceased was very generous to her carer and to Mr Benhayon, the children had received “adequate” provision under the Will. In dismissing their claims, the judge observed that whilst both children lived in rental accommodation, their shares under the Will would enable each of them to pay a sizeable deposit for the purchase of a property.

The court found on the evidence given at the trial that the deceased had weighed up the need to leave legacies to her children with her competing desire to promote the spiritual teachings of Mr Benhayon.

The court noted that freedom to dispose of assets by Will remains a prominent feature of the Australian legal system. It concluded that for the court to re-model a Will because a judge thinks that to do so would be “fairer” would pay no more than lip service, or not even that, to respecting a capable Will-maker’s own judgment.

Please call our Chris Kohler or Ross Moschella on 3221 8655 if you have any queries regarding a deceased estate.

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