LAWS2018: 72-year-old retiree Christine Toohey has recently been given the terrible news that she has only 3-6 months to live: Wills and Estate law Assignment, OUS, Australia

Facts:

72-year-old retiree Christine Toohey has recently been given the terrible news that she has only 3-6 months to live. She has an advanced inoperable cancer. Her doctor has advised Christine to ‘get her affairs in order’.

Christine has been with her partner Philippe Bertrand since 2010. Christine and Philippe live in a beachside home at 28 Oceanfront Esplanade, Lennox Head, NSW 2478.

Christine has three adult children from a previous marriage. These are Louise,  aged 35, Claire aged 31, and Ian aged 27. These three children were parented with Christine’s former husband, Daniel Jones, whom she divorced in 1998. Christine also has two grandchildren: her daughter Claire has twins, currently aged 5. In addition, Christine’s eldest daughter, Louise has just told her that she is 12 weeks pregnant.

Christine contacts your law firm for an appointment. At that meeting she becomes a little distressed, but appears lucid, and communicates clearly and well. She tells you all of the above facts, and then advises you:

• Given her prognosis, there is an urgent need for a new Will to be drafted and signed. Christine says her last will was made in 1997 before she and Daniel separated. It still lists Daniel as the sole beneficiary.
• In 1998, following the divorce, she and Daniel concluded a property settlement, and their assets were distributed accordingly. Christine says that she and Daniel are now on good terms, and in regular contact as parents and grandparents.
• Christine’s major asset is her home at Lennox Head, which she owns as joint tenants with Philippe. There is currently a mortgage of $200,000 owing against the Lennox home.
• Christine also has a small investment property in Lismore, NSW, which is registered in her name only. There is another mortgage of $150,000 secured against this property.
• The other significant asset is the $750,000 in Christine’s superannuation fund. Christine does not have a copy of the super policy with her, but tells you that the policy includes binding nominations signed by her, in favor of her three adult children as equal beneficiaries.
• Other assets include an additional $80,000 in a joint bank account held with Philippe, a $50,000 managed share portfolio in her own name, and a valuable original oil painting hanging in the Lennox Head home. (discussed below).
• There are a number of credit cards currently outstanding, with unsecured debts totaling about $10,000.

Christine instructs you that she wants Philippe to have her original oil painting after she dies. The painting is a ‘still life’ by noted Australian artist Margaret Oley. She has already given Philippe the paperwork for this artwork, including the certificate of authenticity and insurance papers, and she has told him, ‘I want you to have this painting after I die, but I want to continue to look at it while I’m still alive, so I’m going to keep it hanging in the living room.’

Christine has also told other friends that she wants Philippe to have the painting after her death.

Christine’s other specific instructions are as follows:

• She wishes to appoint both Philippe and Louise as her executors.
• She wants her funeral service to be held at sunset on Seven Mile Beach, at Lennox Head. Her body is to be cremated and her ashes spread in the waves at Seven Mile Beach.
• She wants to give her share in the home at Lennox Head to Philippe.
• She wants a specific gift made of $10,000 to each of her grandchildren, with this money to be held in trust by the executors until each grandchild respectively reaches the age of 18 years.
• She wants her superannuation to be distributed in equal shares to her three adult children, Louise, Claire, and Ian. In the unlikely event that any of her children predecease her, their share is to be given to their child or children (Christine’s grandchildren), or if none, to be shared amongst Christine’s other surviving child or children, and their kin.
• As to the residue of her estate, including her Lismore property, it is all to be collected and converted into cash, and then distributed to her three adult children in equal shares. Once again, in the unlikely that any of her children predecease her, their share is to be given to their child or children, or if none, to be shared amongst Christine’s other surviving child or children, and their kin.
• In the unlikely event that Philippe pre-deceases Christine, the share that Christine is giving Philippe in the Lennox property is to pass to Philippe’s adult nephews and nieces surviving as at the date of his death.

You need to draft a will that accurately gives effect to these instructions, and also draft a letter of advice to Christine as per the instructions above. In the letter of advice you should identify all relevant legal issues arising from these facts and instructions, and explain how these issues are going to affect the instructions and the draft Will.

You should also make sure to provide summary directions to the client as to the execution of the will, in the (unlikely) event that you will not be present when the will is signed.