With thanks to the Television Education Network, today’s post considers the above mentioned topic in a ‘vidcast’.
As usual, an edited transcript of the presentation is below -
One very interesting decision was originally published as ADT v LRT and then the appeal, the appeal decision was released as GAU v GVT.
The case involved a mother who had a will that she’d signed giving a significant number of assets to her son in his personal name.
The son was going through divorce proceedings and the mother had lost capacity and was unable to change her will.
The Court was asked by the son to incorporate a testamentary trust into her will for the express purpose of protecting the son’s future inheritance from his matrimonial proceedings.
The inheritance was estimated to be about $5 million, which was significant in terms of the matrimonial proceedings if it was successfully excluded.
In the first instance (ADT v LRT), the Court said that they agreed the testator would have made the change if she still had capacity, but then concluded that it was inappropriate to interfere with Family Court proceedings and therefore refused to grant the order.
On appeal (GAU v GVT), the son was successful and the Court said that the will maker’s intentions were the critical test and there was no doubt she would have made the change if she still had capacity.
The Court said the Family Court proceedings were only relevant at the margins and it agreed to grant the order incorporating the testamentary trust into the mother’s will.
** For the trainspotters, ‘Two and two made five’ is a song by Ned’s Atomic Dustbin from 1992.