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Estate Planning, Wills

Estate Hemmes; Cameron v Mead [2018] NSWSC 85

Edward Cameron, the son born to hospitality magnate, John Hemmes, and Fiona Cameron in 1990 after an extra-marital affair, has been awarded a legacy of $1.75 million from Hemmes’ deceased estate earlier this month by the Supreme Court of NSW.

In 1995, the Family Court of Australia declared that Hemmes was Cameron’s father after a DNA test which concluded paternity with 99.6% certainty. Since that time, Hemmes paid child support until Cameron reached the age of 18 years old, although Hemmes continued to deny that he was Cameron’s father.

In 2010, Cameron began to write letters to Hemmes, however, Hemmes did not respond to these letters, and instead his assistant responded to Cameron, indicating that Hemmes would not talk to or meet with Cameron until further DNA testing was carried out. Cameron also attempted to visit Hemmes, but at an old address. Hemmes, through his assistant, threatened to seek an Apprehended Violence Order against Cameron if he tried to visit him again. Unfortunately, Hemmes died in 2015 without having met his son.

Not surprisingly, Hemmes did not provide for Cameron in his Will. Hemmes also did not provide for his two other children, however, this is normal in situations where a testator is in a relationship with the other parent of their children, as it is assumed that the children will be primary beneficiaries upon the death of the other parent. Further, in the week prior to his death, an amount of $5.7 million was transferred out of one of Hemmes’ bank accounts to his other children.

According to survivorship, any property owned as joint tenants with his wife was automatically transferred to her upon his death and did not form part of his estate. Despite Hemmes having assets valued at around $34 million, survivorship meant that his estate actually had a value of -$300,000. Hemmes also had superannuation of about $4 million.

The superannuation was therefore set aside as notional estate from which a family provision claim could be paid to Cameron, as there was not enough in the actual estate for this purpose.

After considering the circumstances, the Court decided that Cameron was an eligible person to make a family provision claim against Hemmes’ estate, being his child, and that Cameron had not been given adequate provision by Hemmes in death. The Court specifically noted that the child support payments throughout Cameron’s childhood of about $300,000 were not ‘adequate provision’. In determining what amount to award Cameron, the Court considered the moral duty of Hemmes to provide for his child, the size of the available notional estate and Hemmes’ entitlement to freedom in respect of his Will. As such, while Cameron sought a legacy of about $4 million, he was awarded $1.75 million.

The legal costs incurred and the emotional toll on the parties in this matter would be significant, so it is important that Wills are drafted correctly to limit the possibility of any family provision claims against their estate after their death. Although it is impossible to completely prevent family provision claims, appropriate drafting can reduce the possibility of any claims being successful. Please contact us if you would like assistance with drafting your Will.

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