Nina is retired and has the following assets:

• Her home in Cherry Hills which she owns in her sole name with an estimated value of $1.2 million, she has shares in public listed companies worth $50,000, self managed superannuation with $1 million, bank account with $80,000 and an investment property in Sleepy Valley that she owns as tenants in common with her sister Mi Hi Choi with an estimate total value of $500,000

Nina  is a widow, her husband died in 2012.  She and her husband had 3 children, Liam, Kwan and Min. 

Liam is 55 years old.   He is divorced with two children, April (18) and August (14).   He has not worked since his divorce in 2018.  He, April and August lived with Nina for a year after his divorce.  He did not pay Nina any board and while they were living with her Nina bought the groceries and cooked meals for all three of them.  Sadly, Liam became aggressive and after he assaulted   Nina, she had to ask them to leave her home.  Liam has refused to speak to Nari since, and returned the Christmas cards she has sent him.   Liam is on a disability support pension and doesn't own a home.  April and August are full time students.

Kwan is 50 years old and is an investment banker.  She is married to Cyril and has one daughter, Jae. Kwan and Cyril own their home in Eastlakes with an estimated value of $2.5 million, subject to a mortgage of $1 million. Cyril is a teacher.  Kwan and her family visit Nina regularly.

Min is 48 and is a social worker in New Zealand.  She is single and has an adopted daughter, Hana.  Min holds about $300,000 in shares but she does not own any real estate.   Min and Hana stay with Nori for holidays for a few weeks each year.  She has spent much of her life traveling so Nina does not believe that she has much superannuation or job security. 

Nina has made a binding death benefit nomination directing that her superannuation death benefits be paid 40% to Kwan and 60% to Min.  

Nina says she wants to "disinherit" Liam but for the sake of his children she will leave him $50,000.   She wants to divide the rest of her estate as to 70% to Min and 30% to Kwan.

Nina wants some advice from you as to whether she has to treat her children equally and whether Liam can "challenge" her will.   

 

 Prepare a letter of Legal advice to Nina in the following format:

Dear Ms Nina Chalmers

We refer to your recent meeting with the writer.

Personal and Financial Circumstances

(As set out in the scenario. Do not restate in your letter)

Advice Sought

You seek our advice on the following questions: (You should cite a minimum of 5 Australian cases in total)

Are you obliged to provide for your 3 children equally in your will?

What is a family provision claim?

Who is eligible to bring a claim for further provision from your estate?

What factors will the Court consider in any claim?

What assets may the Court use to make further provision for a successful claimant?

What steps can you take to assist your executors in defending a claim?