When siblings to to war over a parent’s will, the outcome is rarely pleasant. This is especially true when the siblings refuse to compromise, as happened in a recent case that was heard in the New South Wales Supreme Court.
John Barbanera took his siblings Nancy and Peter to court after he was left out of his father’s will. He sought up to $300,000 from his father Antonio’s estate, which included a house worth more than $2 million and $50,000 cash.
His father had fully intended to cut his son out of his will. Antonio Barbanera attached to two of his wills a detailed explanation of why he had excluded his oldest son. “While living at the family home at Haberfield, he was constantly abusive towards me, my wife and his siblings,” he wrote. “He was often physically violent towards his siblings, beating each of them on a number of occasions.”
Supreme Court Justice Slattery heard detailed evidence of John’s violence and angry outbursts. Justice Slattery found John’s relationship with his parents was “extremely turbulent and volatile” and was characterised by abuse, threats and intimidation.
“I accept that on one occasion in 1983 when John discovered that [his sister] Angela (now deceased) had a boyfriend, John became enraged and punched Angela very hard in the face, causing her to fall to the kitchen floor with her face heavily bleeding,” the judge said. “He then stepped on her and kicked her while she lay motionless on the floor.”
On another occasion, John chased Angela with a firearm, threatening to kill her, after she ended a relationship with one of his friends. “He demonstrated an unshakeable sense of entitlement to judge the private life of his female siblings that was difficult to comprehend,” Justice Slattery said.
But other other siblings weren’t let off the hook by the court, whose own behaviour was vitriolic and inappropriate in the courtroom.
“At one point in her testimony, Nancy turned to John in the court room, ignoring both counsel and the court, and delivered an obscene and vitriolic rant directly towards John,” he said. “She accused him of many things, but in substance of ruining her life.”
Justice Slattery said Peter nursed a “powerful resentment” against John based on their childhood and a falling out over business that involved Peter attempting to hit his brother with a crowbar.
The judge said Nancy and Peter tried to keep John away from their dying mother. They also humiliated John and his wife Pina at their mother’s funeral by hiring security guards to watch him.
“The other major act of humiliation was the complete deletion of John’s name from mention at the funeral,” Justice Slattery said. “So effective was this that I accept Pina’s evidence that after the ceremony, the priest conducting Maria’s Requiem Mass approached John and her to apologise.”
Justice Slattery rejected John’s claim for family provision because of his “comfortable” financial position of more than $5 million as well as his “capacity and a propensity to work” despite health issues. Other family members, in contrast, had “real and oppressing financial concerns”, he said. The judge also pointed to the “tumultuous family history”, describing John as “the prime aggressive mover in creating family chaos and disharmony over the years”.
Ultimately, this case is more than airing dirty family laundry. The case has left the siblings with a huge bill, destroyed family relationships and expended an enormous amount of emotional energy.
Record Number of Wills Being Contested
These siblings aren’t the only ones to fight out a battle over a parent’s will. In the UK, rising house prices and increasing numbers of blended families are the two main reasons why more than 14,000 attempts were made to contest wills as estates become more valuable and complex.
With divorce and remarriages increasing, figures from the Government’s probate register saw the number of challenges rise from 11,735 in 2014 to 14,167 the following year.
The most common scenario is an older divorcee remarrying, but neglecting to change their will. The will becomes out of date – leading to disputes between their new family and the children from their previous marriage. With property values increasing rapidly over the past 20 years estates are now much larger than they were decades ago, meaning a larger pot for people to fight over.
Nearly one in ten people over 65 is now a divorcee and there have been several high profile examples of wills being fought over.
Recent disputes include one between the children of Beatles producer George Martin and another involving Debbie McGee, the widow of magician Paul Daniels, and his son. The case of Ilott versus The Blue Cross saw Heather Ilott contest her mother’s decision to leave the majority of her estate to charity. In a judgment given last month the Supreme Court ruled that mother-of-five Heather Ilott, 56, would receive only £50,000 from her late mother’s £486,000 estate after a ten-year battle.
Mrs Ilott had been disinherited by her estranged mother Melita Jackson who then left the bulk of her estate to three animal charities that she had not even supported.
Supreme Court justices overturned a Court of Appeal decision, which awarded Mrs Ilott, from Great Munden, Hertfordshire, £163,000.
They ruled an order made by a district judge in 2007, that the sum should be £50,000, is to be ‘restored’.
Contesting a Will in Queensland
In Queensland, a spouse, de facto, child, adult child, step children and some financial dependents have a right to apply for provision. If a person who has a right to apply for provision has been left without adequate provision from a deceased estate, they can contest the will. A “Family Provision Application” is the legal term for this kind of matter.
Bryan Mitchell, an Accredited Specialist in Succession Law in Queensland says that an increasingly common scenario for contesting wills occurred in blended families, where the children from a first relationship have been cut out of the will and the assets left to a second spouse. Or where a second spouse has been kicked out of the family home by the children from the first relationship. Bryan Mitchell says that estate planning for blended families is complex and should be entrusted to a specialist. The claim does not have to end up in court, as it is often settled after mediation.
If you have a question or concern about the contents of a will, or you’d like to discuss your own will, please contact us today. We offer a free, 10-minute phone consultation.