Fighting for entitlements,
protecting interests

News » Past articles » Modern family structures and the effects on ones' Estate

Modern family structures and the effects on ones' Estate

2012-12-12

It is said that 'a man's home is his castle' and generally speaking, people making Wills are free to leave their property to whomever they choose. But is this really the case? Modern family structures can be complicated and alternative methods of managing one’s private life are becoming well known. Courts are more often asked to rule on claims made by non-traditional claimants against Estates they may have been left out of.

How does a Court consider the case of a claimant omitted from a Will against the principle that a Testator can dispose of their Estate as they see fit? Consider these two instances…

ASHTON V PRATT (NO. 2) [2012] NSWSC 3

Early this year, the Supreme Court of NSW heard an action by Madison Ashton, mistress to the late Richard Pratt, to enforce a promise made by the well-known business tycoon.

The Court accepted that Mr Pratt told Ms Ashton that he would establish trusts of $2.5 million for each of her two children, pay her an allowance of $500,000 per year, pay up to $36,000 per year for rental accommodation for her and pay $30,000 per year for business expenses, particularly travel.

In exchange, Ms Ashton agreed not to return to the escort industry and provide services (non-exclusively) to Mr Pratt as his mistress on occasions when he was in Sydney.

Justice Brereton dismissed Ms Ashton’s claims as there was no intention to create a legally binding agreement. Justice Brereton also held that the agreement would be void due to public policy grounds. The public policy ground relied on was that the agreement was “sexually immoral and/or prejudicial to the status of marriage”.

SINCLAIR V FORSYTH [2008] VSC 250

Malcolm Forsyth was not as wealthy as Richard Pratt but his Estate also faced legal difficulties when his “girlfriend” made a successful claim.

He was unmarried at the time of his death and lived alone in a property which had been the family home and which passed to him and his brother Campbell (as tenants in common) upon the death of their parents.

Campbell, who lived elsewhere with his wife and two children, was the executor and sole beneficiary under a Will made by Malcolm in 1973. Malcolm’s Estate was valued at $791,000.

Marlene Sinclair brought a claim for provision from Malcolm’s Estate, which was heard by His Honour Justice Harper in the Supreme Court in June 2008. Marlene said that she had been a friend of Malcolm, but after her marriage broke down in 1992 their relationship became intimate. She said that ‘we made a life long commitment and said that we would just spend as much time as we could together, that we would look after each other, no matter what, and we would get married when we could’.

Marlene and Malcolm:
(a) never married;
(b) maintained separate homes for the duration of the relationship (indeed, Marlene continued to cohabitate with her husband for some years after 1992);
(c) were not financially interdependent; and,
(d) never disclosed the relationship to Campbell.

At trial, Marlene led evidence from 12 witnesses as to the intimate and committed nature of her relationship with Malcolm. Witnesses gave evidence of a conversation in which Malcolm said that he wanted to provide for Marlene in the event he pre-deceased her.

Campbell who was Malcolm's brother and the Executor and Sole Beneficiary of the Estate emphasised a number of matters to the contrary which included:
(a) Malcolm had never mentioned the relationship to Campbell or his wife;
(b) neither Campbell nor his wife had seen any sign of the relationship (although they had rarely set foot in Malcolm’s house);
(c) there was no sign of financial intermingling;
(d) Malcolm’s house was a pigsty, dusty and unclean;
(e) Malcolm had a skin condition which was irritated by dust and that if she truly cared for him (she had described herself as his carer and was by profession a nurse) she would have done something about this; and,
(f) Marlene had not made a will in favour of Malcolm.

His Honour ultimately found that the evidence indicated a relationship of ‘deep and intimate affection’ and decided that:
(a) Malcolm did have a responsibility to make provision for Marlene;
(b) the distribution of the estate did not make adequate provision for the proper maintenance and support of Marlene; and,
(c) Marlene was entitled to one half of the estate.

Please contact Pam Horton, Accredited Wills and Estates Specialist at phorton@richbenn.com.auor Gordon Ainger, Accredited Family Law Specialist at gainger@richbenn.com.au in the event you have any queries relating to this contact or Wills and Estates matters generally.

Back to Past articles

Join our newsletter

For all the latest from Richmond & Bennison,
please subscribe to our newsletter.