My great uncle Marc O’Donnell was the quintessential country farming gentleman. Marcus O’Donnell and his wife Kathleen lived on a farm near Bloomsbury and had seven children. Uncle Marc never swore, had a strong Catholic faith, loved his wife and children and all of his family. Marc was hard-working and because he was very careful with his money he accumulated a considerable amount of wealth, mostly comprising his farm at Bloomsbury, other outside property investments and a significant share portfolio. Money was never spent on luxury items such as a car or a house.
Nevertheless, Marc was a very generous and kind man who had a wonderful sense of humour.
My father John Telford will tell you that the most fun that he ever had in his life was when as a young man he went and worked with Uncle Marc. Many practical jokes were played out in the cane fields.
In later years, Uncle Marc and my father spoke by telephone on a regular basis to discuss the goings-on of the sugar industry and life in general. As a child I can remember being excited at the prospect of going to Uncle Marc’s place because he and his family were just so much fun to be around. A defining moment in my childhood, which I often recall to this day, was one of these occasions when the family all had a sing-a-long around the piano.
I remember Uncle Marc singing the song “Take Me Home Again Kathleen” to my Auntie Kath. I remember how surprised I was at how well he sang and also by the obvious love that Uncle Marc had for my aunt. This love became even more apparent when Kathleen was diagnosed with Parkinson’s Disease.
No matter how incapacitated my aunt became, my uncle refused to place her in a Nursing Home and he spent ten years of his life, with the help of full-time carers and his family, caring for Kathleen until she passed away in May 2006.
I remember as a young sole practitioner in Proserpine the pride that I felt when my Uncle Marc came to see me for the first time in the early 1990’s. It meant a lot to me for someone such as Marc, whom I respected so much, to come to me for legal advice. At this stage, my relationship with my uncle changed from that of a child looking up to his respected uncle to a more grown-up type friendship. My uncle never spoke ill of any person but events occurred within his family which caused tension and ultimately led to my uncle’s decision to remove two of his children as beneficiaries in his Will. For me this was heartbreaking on both a personal and professional level. The fact that this could occur in such a caring, loving family made up of good people illustrates the fact that a family dispute can occur within the best of families.
Uncle Marc died in May 2007 without having resolved the estrangement that occurred with two of his children. The almost inevitable court case followed.
The Succession Act allows a deceased person’s spouse, child or dependent to make application to the Supreme Court for adequate provision to be made from the Estate of the deceased person.
The Court will consider many factors. This includes the size of the estate, the financial circumstances of the person making the application, the conduct of the applicant towards the deceased and whether the applicant has in some way contributed or helped the deceased person establish or maintain their estate.
These situations are very difficult because the executors who then have the task of upholding the terms of the Will have an obligation to defend any application that has been made.
As in this case, this can place a great strain on the family members who are left with the task of being the executors of the deceased’s estate.
The Supreme Court in Brisbane handed down it’s decision in relation to my Uncle’s estate earlier this year. The court case took a toll on all concerned. One claim was settled prior to the hearing and the remaining child was awarded a lump sum payment together with some costs. The judge believed that a payment should be made because the value of the estate was significant. Effectively a distribution could be made without unduly affecting the distribution of the estate to the remaining beneficiaries.
There is no simple solution for many of these situations. I do believe that having observed many different disputes, one of the most significant and common contributing factors is a lack of communication. I cannot emphasise enough the need for parents to discuss with their children what is going to happen when they die.
It is important for you to discuss matters with your accountant and your solicitor. In my Uncle Marc’s case, he died suddenly from a heart attack before he could properly arrange his affairs to achieve the outcome that he wanted.
We do not live forever and as such, we need to plan for our death. If you have a family situation that could result in an argument within your family after your death then please do not procrastinate, as we all do. Start planning now to ensure that you minimise the risk of your death being the catalyst for further division within your family and for your hard-earned money to be eaten up in legal fees.
I have written this article firstly to acknowledge and recognise my Uncle Marc for the kind, humble and loving man that he was.
Secondly, I have written this article to illustrate that even the best of families can have breakdowns in relationships which can result in complex, expensive and emotionally draining litigation. See your accountant and solicitor but most of all, if possible, talk to your family.
