Published: 29 January 2020
Author: Nadine Scarlett

Battle over millionaire’s Estate shows not all kids have equal claims in a Will

The high-profile legal challenge of a Will by the sons of a dry-cleaning millionaire highlights the pitfalls of assuming that all your children will be assumed to have equal legal entitlements on your estate once you have died.

Children of the late Adelaide dry-cleaning millionaire Antoine Nemer are gearing up for legal battle after Mr Nemer’s wife made a last-minute change to her Will resulting in an unequal distribution of the couple’s assets to their children.

Together, Mr Nemer and his wife Linda had eight children; four sons and four daughters.

As now reported by a number of media outlets, Mr Nemer died in 2016 leaving the bulk of his Estate to his wife Linda, after having made their Wills only one year prior.

Only months after Mr Nemer’s death, Linda amended her Will by way of a codicil (a document that amends or revokes part of a Will). The codicil significantly reduced the inheritance of three sons and increased the inheritance of four daughters.

Five months after the codicil was made, Linda passed away and was survived by all eight children.

Linda’s last-minute change to her Will results in a sizeable disparity between the children’s intended inheritances. Now, three of her son’s mean to correct this disparity.

It is currently reported that all three sons affected by the codicil will seek to uphold the original Will without the codicil. The grounds upon which the sons will seek to invalidate the codicil are yet to be revealed.

Must children be treated equally under a parent’s Will?

Upon reading this story, many may question whether it was unfair of Linda to have treated her children unequally under her Will.

As Wills and Estates solicitors, we often listen to our clients wrestle with the concepts of ‘fairness’ and ‘equality’ when determining how to distribute their assets in their Will. Commonly, clients will assume that ‘equality’ among their children will, in fact, result in ‘fairness’. Interestingly, the Courts in Victoria do not make that same assumption when determining claims by a child for further provision out of a parent’s Estate.

Put simply, parents acting as fair and reasonable testators will not necessarily be obliged to treat their children equally under their Will. Further, the fact that a child has received less than their sibling under a Will will not necessarily entitle the child to further provision from their parent’s Estate.

In the recent Victorian Supreme Court decision in Ross v Ross¹, the Honourable Justice Moore analysed these concepts of ‘fairness’ and ‘equality’ of treatment between beneficiaries. In this case, the testator made lesser provision for her daughter and greater equal provision for her two sons. The daughter subsequently made an application for further provision out of the Estate.

His Honour considered the testator’s freedom to assess the competing claims on her Estate and to dispose of her assets as she desired. His Honour elaborated on the notion that beneficiaries need not necessarily be treated alike, citing the Honourable Justice Dixon’s explanation in Firth v Reeves² that ‘equality of treatment is not a necessary element of testamentary duty’.

Take-away lessons for parents making their Wills

Will making requires consideration of the circumstances in their totality. When deciding how to distribute your Estate amongst children, it’s important to consider:

1. What is the value of your Estate?
2. Are any of your children minors?
3. Do you have any adult children who are financially or otherwise dependent on you? (i.e. do they still live with you?
4. Are all your children in a similar financial position? If not, how are they different?
5. Have any of your children made contributions to the building up of your assets? (i.e. contributions to house repayments or bills
6. Do any of your children suffer from a disability or ongoing medical condition?

While this list is not exhaustive, it serves to prompt clients to consider whether or not it is appropriate to treat their children equally in their Will. As an example, a child that is financially or medically in need may have a stronger claim on the Estate than their siblings who are in an advantageous position

Sadly, failure on the part of the Will maker to adequately assess the competing claims on their Estate may result in their beneficiaries being tied up in potentiality avoidable litigation.

For these reasons, it’s important to engage an experienced Wills and Estates solicitor to discuss your circumstances before, rather than after, setting pen to paper.

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