September 28, 2014
>Recently we acted for a child of a deceased person in making a claim for family provision (another form of “contesting a Will”). The Will left our client with only 0.3% of the estate, providing the balance of 99.7% to her brother. As our client was an eligible person with needs, we commenced the family provision claim process with the Trustee appointed pursuant to the Will (also the brother).
>Cooperation was not entirely forthcoming, and the other side were not willing to provide us with bank and other financial product records. Their reasoning was that the estate was in a position to pay our client’s entitlement as specified in the Will, and given that this was all our client (a named beneficiary) was entitled to, she had no need for or right to the information. For that reason, they also argued that, even though our client may be eligible to make a claim against the estate, and the size of the estate is a relevant factor in determining such a claim, the Trustee was under no obligation to produce documents or records (unless and until ordered to do so by the Court).
>We were ultimately successful in arguing that any trustee has a duty at common law to furnish full information regarding trust property to any beneficiary of that trust without reluctance. We were then able to obtain bank and other financial product records (term deposits and so forth) dating back over eight years.
>The information proved to be a vault of valuable information, literally worth its weight in gold. The reason is that, not only is the nature and size of the assets of an estate are relevant to the size of the family provision award a claimant might receive, but so too is the nature and extent of any prior provisions made to any other beneficiary. If an eligible person proves a need for such provision, generally speaking, the Court then seeks to provide enough to meet that need, while coming as close as possible to giving effect to the terms of the Will. When more than one beneficiary has needs and the estate is insufficient to satisfy them both, and in any event, the Court has to take into account many different factors in order to reach a fair and equitable resolution, hence the relevance of prior provisions made to others.
>In this case, it appears that several significant provisions were made to the other beneficiary during the course of the deceased’s life. The effect of this information is therefore to potentially significantly increase any award that might be granted to the claimant, as such provisions will be credited to (and reduce) the other beneficiary’s residual entitlement. For example, because the claimant is able to establish that she is an eligible person and that she has significant needs, her entitlement may increase from 0.3% to around 30% of the estate, but because of the additional information and the effect it may have, her ultimate entitlement might grow from 30% to around 50% of the estate.
>If you are involved in a deceased estate dispute, were left out of a Will or if your inheritance was less than expected, give us a call.