11-year-old Koby Hamilton, via his mother, has filed a claim in the NSW Supreme Court against the late Australian cricket legend Dean Jones’ widow as Executor of his estate. Attwood Marshall Lawyers Legal Practice Director, Jeff Garrett explains why this is another salient lesson that even famous, wealthy people need to have their estate planning done properly, and often don’t!
Who is Dean Jones?
Jones was an impressive top order batsman in the Australian cricket team who revolutionised one-day cricket in the late 1980s and early 90s with his daring running between the wickets, elegant stroke play and spectacular fielding. His energy and athleticism was infectious and helped the Australian team to be one of the top international sides during this era.
He played a total of 164 one-day international matches for Australia and scored 6068 with an average of 44.61, he was also a member of Australia’s first World Cup winning team in 1987.
He featured in 52 test matches, scoring 3631 runs at an average of 46.55. His most notable innings was in 1986, only his third test, a gruelling double century in a cruel heat in Madras (now Chennai), India that resulted in him being taken to hospital after he was finally given out.
He was also known for his philanthropy, raising funds for those suffering from cancer. On 12 June 2006, in the Queen’s Birthday Honours List, he was made a Member of the Order (AM) of Australia for “service to cricket as a player, coach and commentator, and to the community through fundraising activities for organisations assisting people with cancer”. In 2007, Jones was named in Australia’s “greatest ever ODI team.”] In 2019 he was inducted into the Australian Cricket Hall of Fame.
A legal battle of Jones’ estate
Jones passed away suddenly in September 2020, suffering a stroke in a Mumbai hotel while preparing to commentate on the Indian Premier League tournament, shocking the global cricket community. More than a year after his father’s death Koby has launched a Supreme Court action against Jane Jones.
Koby is the result of a 10 year on and off affair between Jones and Kerri-Anne Hamilton, whom he met in the 1990s while she was working as a flight attendant. According to court documents the exact value of Jones’ estate has not yet been determined but Ms Hamilton suggests that Jones’ Will, which was prepared over 9 years ago, did not provide adequate provision for her son.
What is adequate provision?
Even when a person makes a lawful Will it is still possible that an eligible person can bring a family provision application (FPA) to the court for it to change the disposition of the Will in their favour.
If a person dies without making adequate provision from their estate for the proper maintenance and support of their spouse, child or dependant, the court may order that provision be made as it sees fit.
Only eligible persons can make an FPA, meaning spouses, including de facto partners and parties to civil partnerships; children, including step and adopted children of the deceased; and ‘dependants’, including any person who was being wholly or substantially maintained or supported by the deceased, such as grandchildren and non-relatives.
What factors does the court use in assessing adequate provision?
When working out whether ‘adequate provision’ for ‘proper maintenance and support’ has been made from the estate, all the relevant circumstances of the case are considered, including:
- The size of the estate and whether it is sizeable enough to make the provision applied for.
- The applicant’s need of the provision from the estate in relation to financial situation and responsibilities
- Whether the applicant has a monetary need for the provision.
- Whether the applicant significantly contributed to the estate of the deceased.
- The relationship of the applicant to the deceased prior to their passing.
- Whether there has been any conduct by the applicant which should prohibit them from provision, such as drug dependence or gambling addiction.
- The nature of the competing claims on the will and the reason why the will-maker regarded other dispositions superior to the applicants.
All these factors are considered based on whether the provisions from the Will are adequate, rather than generous.
A Summons filed in the court in October stated that Jones “had a moral duty and responsibility” to include his son in his Will. “The distribution of the deceased’s estate in accordance with the deceased’s Will is such as to not make adequate provision for the proper maintenance and support of (Koby),” it read.
Ms Jones told The Herald Sun “I can confirm I have supported the mother and child more generously than was agreed. At no stage have I not met my obligations. My immediate aim is to seek the forgiveness and understanding of family.”
Koby is asking the court to order Ms Jones, as executor of her husband’s Will, to give him a share of his father’s estate, and rule that his legal costs also be paid from the estate.
The Daily Telegraph reported that Ms Hamilton said Jones did not meet Koby until he was two years old, however following that, they were very much in each other’s lives. She said Koby last spoke to his father just two days before his death.
Claims by young children of a deceased parent who has not made adequate provision for them in their Will are usually upheld, depending on all the circumstances outlined above. Although Dean Jones did at least have a Will, he may not have received proper advice about drafting the Will and making adequate provision for his infant son. This happens more often than not and it is very important that you obtain advice from an experienced lawyer in this complex area of law. It may save your loved ones hundreds of thousands of dollars.
Jones is not the only celebrity who has not been fully prepared when it comes to estate planning.
Monty Python star Terry Jones (no relation to Dean) passed away in 2020 at the age of 77 due to dementia and a year later a High Court battle between his second wife, Anna Soderstorm, and his children, Bill Jones, and Sally Jones, ensued.
The children of the Monty Python original believe that their father was not of sound mental capacity at the time of changing his Will. They made a claim for “reasonable provision” against his estate, which he had left to his wife of nine years, Anna, and their daughter, Siri, in 2015. Anna does not believe Jones’ mental capacity should be in question as he had the ability to work at the same time the Will was drafted.
Bathurst 1000 legend Peter Brock’s Will was deemed invalid after his death, creating multiple issues for his loved ones when attempting to fairly divide his estate, a topic we at Attwood Marshall have discussed previously.
Prince Rogers Nelson, was a successful musician and entertainer, generally known as Prince. He passed away in 2016 at the age of 57, leaving behind no eligible Will and a valuable but complicated estate. Prince had no children and was unmarried at the time of his death. He had two ex-wives, multiple siblings, and half-siblings, one of whom had a child, and all claiming to be rightful heirs to his estate.
By not having a Will, Prince didn’t exercise his right to govern who would and would not inherit a share of his estate or which shares the heirs would receive, nor did he select the executor of his estate. Instead, the courts following state statutes determined this.
The executor is in control of many imperative decisions, they choose the professionals essential to identifying the estate’s assets and the value of them, as well as who files the estate tax return and handles any disputes that arise. Prince’s estate is now in dispute with the IRS as they are claiming that the estate is worth twice what has been listed in the tax return.
Even in a less wealthy and simpler estate, the executor’s decisions are vital. Often, what the deceased would have wanted differs significantly from what ensues once the courts take control of an estate since there was no Will, or an insufficient Will, to specify otherwise.
How do you prevent this from happening to you?
Contesting a Will can be expensive, emotional and stressful for all parties involved and it is always best to prevent the likelihood of this happening by taking certain precautions and obtaining legal advice from an experienced estate planning lawyer in this area.
By ensuring you have your most basic legal documents in place, such as a Will and an Enduring Power of Attorney, you can reduce the risk of someone contesting your Will after you die. This makes life easier for the loved ones you leave behind, making sure your instructions are clear and adequate provision has been provided for anyone you have obligations to provide for.
Stories of celebrity families battling it out in court over their loved one’s estate should be a warning for everyone that no matter what your family dynamics are, or how much wealth you have, everyone should have a Will that has been prepared by a legal professional who practices in this complex area of law.
There is a lot to take into consideration when drafting a Will including your family dynamics, how your assets are owned, assets that cannot be gifted in a Will, and who you want to benefit from your estate when you die. There are different strategies you can use to ensure your wishes are fulfilled.
We have a dedicated team that practice exclusively in estate litigation and frequently see the pitfalls and consequences of “do-it-yourself” Will Kits and Wills prepared by Public Trust Offices, and how these types of documents lead to litigation.
Attwood Marshall Lawyers can assist with all levels of estate planning to ensure your documents are legally-binding, are drafted to suit the nature and complexity of your estate and will preserve your wishes.
How can Attwood Marshall Lawyers help?
Wills are one of the most important tools for later life planning. Many people do not hesitate to take out other forms of insurance such as home, business, or car insurance to protect themselves in the event the unexpected happens, yet approximately half of the population are reluctant to write a Will to protect their loved ones and assets.
Our lawyers take great pride in developing great relationships with their clients so that they can ascertain what matters most to them, and how they can aid them in planning for the future and execute their requests.
With one of the largest Wills and Estates Departments in Australia, we want to make it as easy and as cost-effective as possible for everyone to have their most basic legal documents in order.
If you need help drafting a Will or Enduring Power of Attorney or Appointment of Enduring Guardian, then our friendly team are ready to assist you! The process does not have to be as overwhelming as you may think. Book an appointment today with Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email email@example.com or free call 1800 621 071 any time and get your documents underway.
We also have a dedicated team of estate litigation lawyers that practice exclusively in this area of law. Our lawyers are here to help resolve estate disputes effectively and to protect the wishes of the deceased, while at the same time ensuring you receive any entitlements as a beneficiary. We do our best to reduce the costs to the estate and resolve conflict at the earliest opportunity.
To discuss any disputes over Wills and estate matters, whether you are the executor of an estate, a beneficiary named in the Will, or a trustee of a testamentary trust, our estate litigation team can help you understand your rights and what steps to take next to resolve your matter. Contact Estate Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email firstname.lastname@example.org or call our 24/7 phone line any time on 1800 621 071.