What wins: the Family Law Act or the Will?

Reasons for judgement were recently released in the case Re Leniuk Estate.

The deceased left a Will in which two Executors were appointed. Part of the Estate was bequeathed to the deceased’s grandchildren, one of whom was still under age 19.

The Executors wanted the grandchild’s guardian to hold the part allocated to that grandchild (about $15,000) to hasten the full resolution of the Estate.

They applied to the Court for directions, referring to Part 8 of the Family Law Act. This part of the Act allows a Court to appoint a Trustee for property to which a minor is entitled.

In a careful analysis, the Court held that Part 8 of the Act does not override a Will.

The Court added that Part 8 applies where a minor is entitled to property but no Trustee exists. An application may be then made for a Court Order appointing a Trustee.

However, where a Will exists, it governs. The Will appoints a Trustee, so no Court application is needed.

This provision of the Act had never been before the Court in an application such as this. It was properly made.

But what this case may also show, I suggest, is that some more careful planning by the Will Maker may have helped.

The grandchild’s portion was relatively small, and it was sensible that the Executors would not want to incur extra expenses from keeping the Estate active until the child reached adult status.

However, the Will overrides Part 8 of the Act, so despite the small portion being held, the Trustees would have to act after all.

This ad ran in the Richmond News on February 12, 2016.