George Williams, the father of one of Australia’s most infamous criminals Carl Williams, died of a heart attack on 12 May 2016 leaving an estate in Victoria. The women he left behind are now embroiled in a bitter dispute in relation to his estate.
A plethora of legal issues surrounds George’s estate, including a contest between two Wills, conflict between executors and a nasty tax bill. Estate Litigation Senior Associate Lucy McPherson discusses these issues.
George’s estate consists of two properties, one in Essendon, Victoria and the other in Broadmeadow, Victoria. Roberta (Carl’s ex-wife), her partner and children (including Carl’s daughter Dhakota, born 10 March 2001) live in the Essendon property. George’s de facto Kathleen Bourke lives in the Broadmeadow property. Ms Bourke is the sister of George’s late wife Barbara who died in 2008.
George left two Wills; one dated 2009 and the other dated 2010. Court records indicate separate applications for Probate of each Will was made in the Supreme Court of Victoria between February and March 2017, but only one of the applications was granted. Probate was granted in relation to the latter Will, propounded by Ms Bourke. The latter Will leaves the Essendon property, valued about $1 million, to Carl and Roberta’s teenage daughter Dhakota and the Broadmeadows property to Ms Bourke.
The earlier Will dated 2009 leaves the Essendon property to Dhakota and $130,000 to Ms Bourke along with all his chattels. If the remaining estate is not disposed of properly by his Will, Dhakota may be entitled to more than the Essendon property in accordance with statutory rules of intestacy which set out the distribution of estate assets that have not been disposed of properly, or at all, by a Will.
Roberta, fighting on behalf of her 16 year old daughter and George’s granddaughter, disputes the validity of George’s latter Will signed in December 2010 on the grounds that he lacked the capacity to understand the nature and effect of making a Will at the time the Will was drawn and executed.
On 19 April 2010, George’s son Carl died from a head injury whilst incarcerated in Prison. Another inmate struck Carl with part of an exercise bike. Roberta argued that the trauma of Carl’s death meant that George was not in a mental state to make a Will, only eight months after Carl’s horrific death.
A Will can be challenged on the basis the Will-maker lacked testamentary capacity at the time the Will was signed. In order to successfully ground an application that George lacked mental capacity, Roberta must demonstrate that George did not meet the requisite legal test. Many of our clients assume the test is a medical test, but it is not. Medical evidence can assist the Court’s determination, but the test for capacity to make a Will is a legal test.
The legal test is summarised as follows:
The Will-maker must:
- Be aware and appreciate the significance of the act in the law upon which he is about to embark;
- Be aware in at least general terms of the nature extent and value of the estate over which he has disposing power;
- Be aware of those who may reasonably be thought to have a claim upon his estate and the basis for such claims; and
- Have the ability to evaluate and discriminate between the respective strengths of the claims of such persons.
No disorder of the mind should poison his affections or prevent his sense of right, nor should any insane delusion influence his will, or influence the exercise of his natural faculties.
In order to win the contest against Ms Bourke, Roberta must satisfy the Court of the above matters, in the context of George’s mental state at the time of his son’s horrific death.
To muddy the waters even more, George died with a $720,000 tax debt and there has been a dispute as to which asset should be sold to pay the debt. Ms Bourke asserts the tax bill should be paid from the sale of the Essendon property. If the tax bill is paid from the sale of the Essendon property, Roberta, her partner and children could be removed from their home. This dispute is sure to play out in the full public glare – it seems we cannot get enough of the ‘Underbelly’ saga. The reality is that a family and children could lose their home due to uncertainty about the will.
An executor of a deceased estate has certain tax responsibilities both on behalf of the deceased person and the deceased estate, including attending to the payment of any outstanding tax. The executor, in effect, steps into the shoes of the deceased person and winds up the deceased person’s personal affairs during the course of the administration of the estate. It will be up to the executor of George’s estate to ensure the tax bill is paid. An executor may become personally liable if they fail to attend to their duties according to law.
Roberta has recently been removed as executor of the Will, leaving the authority and control to administer the estate in the hands of Ms Bourke.
Unfortunately, if not selected carefully, the appointment of multiple executors can lead to conflict. Conflict between executors can be catastrophic for the administration of the estate because of the increased costs and resulting delays caused by feuding executors. Court intervention to decide who is to administer the estate is often required. When an executor behaves badly the Court can intervene and remove an executor from office.
Prevention is always better than a cure. To avoid conflicts between executors, a Will-maker should consult with a specialist Wills and Estates Lawyer to receive advice in relation to common issues that arise in the appointment of an executor. For instance, if the estate involves a number of trusts, companies, and complex unresolved tax issues, perhaps the appointment of an independent professional executor who has legal or financial knowledge may be more appropriate. We often find a sole executor who does not have sufficient legal or financial knowledge can easily become overwhelmed by the task of administering an estate where the estate is complex.
The estate of George Williams is a prime example of how things can go wrong. It is always best to consult with a specialist Wills and Estates Lawyer in relation to the drafting of your Will to ensure your estate is going to be handled properly and efficiently. A specialist Wills and Estates Lawyer can provide advice to a Will-maker in relation to issues like that which have arisen in this estate to mitigate against costly and protracted litigation.
We welcome any enquiries or comments in relation to these issues. Our Estate Litigation department has experienced lawyers who practice exclusively in this area. Please contact Department Manager, Amanda Heather, on free call 1800 621 071 or direct line 07 5506 8245 or email aheather@attwoodmarshall.com.au
