“You can sort it out when I’m gone!”

Posted on April 2nd, 2015

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by Felicity Wardhaugh

Felicity Wardhaugh is a Special Counsel at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

The NSW Supreme Court in Re RB, a protected estate family settlement [2015] NSWSC 70 recently found solutions to the problem of an 80 year old Husband who had become incapable of managing his affairs and who had not written a will.   He was in a nursing home with a prognosis of no more than 6 months to live.  He lacked mental capacity to make a will. 

His Wife of 20 years had been managing his affairs using a Power of Attorney.   The husband had been married before and had 4 daughters still alive from a previous marriage.  Due to the absence of a will, the family was in doubt as to what might happen to the Husband’s assets when he died and understandably wanted to avoid court proceedings about it.  They were able to reach agreement about the division of his estate in the form of a deed.  However, for legal reasons, any arrangement made by them would not bind the Husband.  The Court was asked to order a “statutory will” so that the family’s agreement could be put into effect as if the Husband had written a will making provision along the same lines as the agreement.  The Judge was keen to make it clear that statutory wills are not to be used as a device for everyone but noted that in this instance this was:  “a timely resolution of all simmering questions in dispute between members of the ..family.”

Felicity Wardhaugh is a Special Counsel at Mullane & Lindsay, and practises extensively in Commercial and other Litigation and Employment Law. If you require any assistance in these areas please contact Felicity Wardhaugh or contact our Newcastle office.

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