Jim Jones made application to the Supreme willCourt for the alteration of his wife’s will to prevent their daughter-in-law gaining an interest in her $4.5 million property in Smith Street Mackay in the divorce proceedings against their son.
The application was brought under s 22 of the Succession Act for an order authorising the son’s benefit be held on trust – rather than as an outright gift – by way of a draft codicil presented to the court.
Jenni Jones had Alzheimer’s disease and lacked legal capacity to make a new will herself.
Jim and Jenni had been married for 55 years and he made the application in his capacity as her attorney under an enduring power of attorney dating back to 1992.
Her will was had been written in June 1998.
The “change of circumstance” relied on to support the application was the separation in May 2014 of the son as beneficiary and his wife, the respondent to the application.
The court was urged to alter the will to prevent the asset being treated as property of the marriage to which the estranged wife may lay claim.
The court accepted that the change proposed by the codicil was “an alteration that the testator would have made if she had testamentary capacity”.
This was particularly so given that she had always said that the money she had inherited from her parents that was invested in the property “should remain in the family”.
But evidence from the solicitor who prepared the will was that he had advised her about the availability of a testamentary trust and how it would have protected such asset in the event that was now unfolding.
Regardless, Justice Peter Flanagan was not prepared to make an order that would have such an impact on the property available to be considered in family court proceedings.
His Honour was not satisfied that it may be “appropriate” that such an order be made.
The court ordered that both parties have their legal costs paid from Mrs Jones’ assets. An order was also made supressing the identity of the testatrix to whom we have given the fictional identity of Jenni Jones for this post.
Note however that this decision was reversed on appeal in November 2014. Appeal judges Muir, Gotterson and Morrison JJA concluded that the change to the will proposed by the applicant was appropriate and that the Act was intended to operate in circumstances such as these.