Question: My son passed away in mid-January while on holiday. He named me and his sister as the executors of his Will. Unfortunately, my son has a poor track record with women. He has had a nasty de-facto girlfriend for about 6 years now – which we knew about. It also turns out that he had another girlfriend since about 2009. Neither of the ladies knew about the other – and none of us knew about the second girlfriend.

Although neither girlfriend is named as the Executor (or in the Will at all), they are both telling me (and each other) to butt out of the funeral arrangements. Neither of the girlfriends ever discussed with my son whether he wanted to be buried or cremated. However they are both trying to force their desires onto everyone else. But I brought up my children as Catholic – and I know my son wanted a burial. What is the legal position?

Answer: I am very sorry for your loss. This is a most unsatisfactory position you find yourself in. I do have good news for you though. As executors of the estate, this makes you and your daughter the legal personal representatives of your son’s estate. Therefore, you have the legal right to make the arrangements – no matter what his girlfriends have to say about it.

Without wanting to sound insensitive - this situation is avoidable had there been a written direction on disposing his body in the Will. In most cases a reading of the Will doesn’t occur until the funeral or cremation. It is also imperative to have an open discussion with loved ones about your wishes – even if there is a direction given in the Will. A comprehensive approach to Estate Planning with your lawyer goes a long way in preventing these sort of issues at a difficult time.

Who gets the final say on funeral arrangements?

Over time courts have looked at these issues – but none have made a firm decision. For example Robertson -v- Pine Grove Memorial Park Ltd (unreported) SC (NSW), Waddell. CJ in Eq. 5 June 1986 (Eq 1956/86) and Justice Martin’s decision in the Calma -v- Sesar (1992) 106 FLR 446 case. However, until a court actually has to resolve a legal dispute on this point of law, we won’t have a firm answer.

What happens if there is no Will?

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Can either of the girlfriends challenge his Will?

Yes they can challenge the Will. It doesn't matter who you are - all Wills can be challenged by certain people. Potential challengers can only come from 5 types of relationships:

1. Your parents
2. Your spouse (including de-facto partners)
3. Your children (adopted children but not children born from sperm or egg donation)
4. Your grandchildren
5. Anyone who you are 'maintaining' (but not in all States)
6. Stepchildren who were dependant on the deceased during the marriage of the deceased to the child’s biological parent (but not in all States).

You mentioned that neither of the femme fatales is named in your son’s Will. Unfortunately this is a precarious situation, which is likely to result in an expensive legal battle.

At Civic Legal, we encourage our clients to expressly name any unintended beneficiaries (for example, a de-facto girlfriend) in their Will. At the very least, it shows the Court that you have not merely 'forgotten' that person. This is commonly known as a 'considered person clause'.

However, this does not stop them from challenging altogether. But it does make it much harder for them to be successful.

What about the sneaky $1 gift in the Will? Does this work to stop a challenge?

Sadly, you can't stop anyone from challenging your Will – providing they have a right to challenge under the Inheritance Act in each State. I’ve heard stories of so-called $1 gifts defeating challenges – but they are only successful in overseas jurisdictions (such as the USA). In Australia, if the challenger falls within any of the six categories above, then they have a right to challenge on the basis that they have not been adequately provided for.

Nothing you can do can take away this right. For example, you can't say:

• “I give my de-facto $1 and she cannot challenge my Will”.
• "I give $20,000 to my partner, but if she challenges my Will then the gift is void." (known as the Lang Hancock clause because he tried to use this in his Will – obviously without success).
• “I give the whole of my estate to my partner, but if she remarries then this gift is void”.
• “I give the whole of my estate to my partner on the basis that she remains Anglican and attends church every Sunday”.

All of these are void for public policy reasons. The courts have consistently said you can’t use your Will to force someone to do or not do something. This is called ‘ruling from the grave’. The Supreme Court doesn’t like you trying to oust their jurisdiction like that.

Is it really all doom and gloom?

Thankfully it’s not all bad news. Just because someone can challenge your Will, doesn't mean that they will be successful.

At Civic Legal we have an experienced team of Estate Planning lawyers and litigators who can assist you to get your estate planning right the first time and help you fend off the ‘wolves at the gate’ if your Will gets challenged.

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