The Court recently ordered that a life interest in a property be made a flexible life interest by way of a ‘Crisp’ order.
The deceased had prepared a will that left everything to his only child from his first marriage, and granted only a life interest to his wife in their primary residence for the rest of her life. This was quite a change from an earlier will he had made shortly after he married her, where he left the bulk of his estate to her (and similarly she did the same in her will), and his investment property to his son.
However, the deceased started reconsidering the terms of his will as early as 2005. When his wife was overseas on a trip in 2016, he was unable to accompany her due to ill health, so he saw a solicitor and wrote a new will. In the new will, he gave both properties to his son. To his wife he gave her the right to live in the property until she died or left it, and then divided the rest of the estate equally between his wife and son.
The deceased told his son that he had changed his will, but did not disclose the terms. He did not tell his wife that he had made a new will.
When the deceased was in palliative care, he spoke to another solicitor about transferring the primary residence to his wife. However, the solicitor advised him it was not necessary as she had read the original will made in 2001. At no time did the deceased indicate to the lawyer that he had made a new will with another firm of solicitors.
Knowledge of life estate?
During the hearing there was some contention about the knowledge of the deceased, and whether he had properly understood how a life estate would operate. There was some argument as to whether the deceased had ‘knowledge and approval’ of the contents of his will.
The Court found that the deceased knew what he was doing when he wrote the new will. He had given clear instructions to the solicitor (whose evidence was important during the proceedings) that indicated he understood what a life interest was. He gave sound reasons for giving his wife such an interest in their primary residence.
The life interest was a simple one, giving only a right to live in the named residence for the rest of her life. There was no flexibility, or provision for the property to be substituted for another that may be more appropriate for his surviving spouse. The Court ordered what is known as a ‘Crisp order’, which is essentially a flexible life interest – this means that the property the subject of the life interest may be sold, and another property purchased with the proceeds, in which the beneficiary of the life interest may continue to reside for the rest of their life, the same way as if they had continued to reside in the original premises.
In addition to making a Crisp order, the Court made an order for family provision. The will did not provide the deceased’s wife with adequate and proper provision, and granted her an additional sum in the order of $45,000. This money could be used to improve the property and maintain it. It was found that as the wife had adequate income herself, there was no need for the estate to contribute towards rates and insurance of the property.
Cost of secrecy
If you are intending on changing your will, it is best to discuss this with your family and make sure they know about it. It can remove the need for expensive litigation following your death as to the interpretation of your will, or whether you knew what you were doing at the time. The costs in this matter were well over $200,000!
If you seek advice from a solicitor regarding your assets, make sure you have properly informed them, so they can give you adequate advice – even if you haven’t told anyone else what is in your will!
Ng v Lau; In the Estate of Ken Kui Yuen Lau  NSWSC 713