Mother and son in legal tug of war over will (AU)

‘This is a sorry case.’

So began Justice Pembroke’s decision in the case of Wilcox and Wilcox. Forty six year old Robert Wilcox had taken a dispute with his mother over his grandfather’s will to the NSW Supreme Court.

The testator had left the grandfather’s estate, which Mr Wilcox and his younger brother thought they deserved, to his daughter Patricia Anne Wilcox, Robert’s mother.

Justice Pembroke was clearly unimpressed by Mr Wilcox. He described the plaintiff’s claim as based on ‘a highly developed and unhealthy sense of entitlement’.

Prue Vines, a professor at the University of NSW and one of the country’s leading experts on wills and succession law, says it is unusual for a judge to be so direct.

‘Well, he thought that Robert Wilcox had been given a great many opportunities. His grandfather sent him to King’s, an elite private school. He had also funded him to go to agricultural college and so on,’ she says.

‘But the plaintiff doesn’t appear to have been on the property for the last 10 years or so before his grandfather died. The judge really thought that he hadn’t made much effort in relation to making his life work and that he had been too certain that he was going to get an inheritance and therefore he hadn’t bothered very much.’

Mr Wilcox had in the past run some small businesses but was currently on unemployment benefits and living in shared rental accommodation.

‘His delusional insistence on his entitlement to own and operate his grandfather’s pastoral properties has I suspect operated as a self-imposed impediment to his advancement in life,’ said Justice Pembroke.

These are strong words from a judge, according to Professor Vines. ‘Who knows whether they are correct or not, but I think there is quite a lot of evidence in the case that suggests that the plaintiff was fairly unrealistic, not just in relation to his view about whether he’d been promised the farm but also in his view of what the farm would give him as an income.’

‘He thought he would get an income from the farm of around $200,000, when it was quite clear that the farm was actually not all that viable. Certainly the expert witness didn’t think the farm was all that viable. And his mother, who was living on the farm, appeared to be only drawing around $1,000 a month from the farm, which is a great deal less than Wilcox appears to have sought,’ she says.

The judge also pointed out that there is often a misconception about the court’s role in family provision claims. The legislation states that the judge has to consider whether there has been adequate and proper provision for the claimant’s maintenance, education and advancement in life. The fact that the grandfather had already contributed a great deal doesn’t mean that there was necessarily a continuing need to give more to his grandchild.

Perhaps surprisingly, given all the stinging barbs, Justice Pembroke did award Mr Wilcox some money. He received $107,000 to pay off a debt to the tax office and $40,000 a year for seven years to get him on his feet financially. However the payment was deferred for two years because of the drought.

Robert Wilcox did very well in Professor Vines’ view. ‘I think he’s extraordinarily lucky,’ she says.

‘Looking at the range of cases and where people have been refused anything at all, I think despite the negative things the judge has said about him, he has actually done very well out of this jurisdiction.’

Vines describes the dispute as Shakespearean and hints that there may be a moral to the tale: ‘It suggests that some of the cases in the past where very wealthy people have left relatively small amounts to their children and grandchildren because they felt that leaving them too much might actually interfere with their ability to work, maybe there’s something in it.’

Attribution:

Mother and son in legal tug of war over will
March 5, 2014
abc.net.au
http://www.abc.net.au/radionational/programs/lawreport/5300582

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