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Insight, Where There's a Will


JENNY BROCKIE: Welcome everyone, good to have you here tonight. Tania, your late father Boy -arn had one of Queensland's biggest property empires, estimated to be worth hundreds of millions of dollars. When he died he left you nothing?



TANIA DARVENIZA: He considered in his will that he had provided for me earlier in his life.

JENNY BROCKIE: When you say he provided for you, how much had he provided for you?

TANIA DARVENIZA: He gave me a block of flats in New Farm which was worth about $900,000 at the time, but he also charged me the deposit on the flats from 1987 - I think it was which was a $23,000 deposit with 27 percent interest over the following thirty years, so he charged me over $500,000 dollars and I had to pay that before he passed me over the flats.

JENNY BROCKIE: Were you shocked when you got nothing in the will?

TANIA DARVENIZA: Yes, and no. Hope springs eternal that your parents will treat you well particularly if they have a lot of money. But I was also not shocked because he had that bent of handing out punishment or judgment.

JENNY BROCKIE: So did you get on with him or not?

TANIA DARVENIZA: Sporadically we got along, even from a very young age I would lock heads with him.

JENNY BROCKIE: Who did he leave the money to, or most of the money to?

TANIA DARVENIZA: 90 percent of the control was left to his new wife whom is the same age as I am.

JENNY BROCKIE: Okay, but how long had he been with her? He'd been with her a while, hadn't he?

TANIA DARVENIZA: 28 years I think it was.

JENNY BROCKIE: How many children did he have?

TANIA DARVENIZA: He had my brother and myself to his first marriage, he had three children to his second relationship and he had three children to the second wife, the last wife.

JENNY BROCKIE: Did any of those people get anything in the will?

TANIA DARVENIZA: His three younger children to the last wife were provided for in a trust, handsomely. My brother, my older brother from the first marriage, he was left nothing because our father decided that he'd been provided for during his lifetime. And same as me, he received debts in relation to that provided for property. And the three children from the middle relationship, one had died, one child was left a very meagre, meagre house, and another child was also classed as having been provided for in his life.

JENNY BROCKIE: So when we're talking about the bulk going to the wife, we're talking hundreds of millions?

TANIA DARVENIZA: The estate was totally $380 million. In his…

JENNY BROCKIE: Estimated as that?

TANIA DARVENIZA: Estimated at the time and in his name was between 28 and 30 million in his own name.

JENNY BROCKIE: What was your father like?

TANIA DARVENIZA: Controlling, liked to pass out punishment, he liked to have a favourite child. He liked to ostracise a child if they didn't do what he wanted even at a young age.

JENNY BROCKIE: When you say punishment, what kind of punishment?

TANIA DARVENIZA: He could beat you, he could make you go and clean flats, he would not send you to school and used to make you sit on the roof during a hailstorm.

JENNY BROCKIE: Sounds like you didn't like him very much?

TANIA DARVENIZA: Oh, um, I liked him because he was my father, but his behaviour was very unlikable.

JENNY BROCKIE: Did you know you'd been written off in the will?

TANIA DARVENIZA: Not until I received a copy of the will and the codicil that went with it.

JENNY BROCKIE: Had he said anything to you about what you would get when he, when he died?

TANIA DARVENIZA: I had spent my entire life watching him tell my older brother and him telling me that one day all this will be yours, you'd inherit all this.

JENNY BROCKIE: And you didn't?


JENNY BROCKIE: So how did you find out - how did you react when you found out about the will?

TANIA DARVENIZA: Words are difficult to explain the emotional roller coaster of I'd been frauded, I'd been lied to, I'd been misled. Well maybe that's just, you can see that was in his nature but you liked to think that there would be some fairness.

JENNY BROCKIE: You and three of your siblings contested the will?



TANIA DARVENIZA: Because we decided that it was unreasonable and one of his statements on his will was if any of us contested his will, that we would get nothing. So we contested it.

JENNY BROCKIE: Ha, ha, I love the raised eyebrow. That was revenge?

TANIA DARVENIZA: That's just cut from his own cloth, yes.

JENNY BROCKIE: You settled in mediation, how much did you get?

TANIA DARVENIZA: I got the maximum that you can get in Queensland law. I have a comfortable life and it's an easy life. To say I'd like more would be to sound, be sounding spoilt but in some ways you think we had a very bad childhood and a very bad upbringing and a lack of education which most people are given if they're much poorer. I'm resentful.

JENNY BROCKIE: Who do you think is most entitled to your father's money?

TANIA DARVENIZA: All of us, including every woman he's ever gone out with or lived with.

JENNY BROCKIE: David, you grew up working on your parents sheep and wheat farm in Victoria. What did they tell you about what would happen to the farm when they died?

DAVID SHALDERS: Um, oh, pretty much it would be left to me.

JENNY BROCKIE: And when did you start working on that farm?

DAVID SHALDERS: When I was 16. At age 25 we were all in business together.

JENNY BROCKIE: Now your father died in 1989 and then your mum died in 2006. Did she keep her word about the farm going to you when she died?

DAVID SHALDERS: Yeah. I got left the land and everything in our partnership and me sisters got a house, I had to pay them 150,000 and they got some money, about half a million dollars or a bit more.

JENNY BROCKIE: Okay, so it was $2.7 million estate?

DAVID SHALDERS: That's what they reckon, yeah.

JENNY BROCKIE: And you have five sisters?


JENNY BROCKIE: So they each got what, about 100,000 each or a bit over 100,000 each?

DAVID SHALDERS: Yeah, 130 odd.

JENNY BROCKIE: Okay. And what happened when they found out that you'd been left the bulk of the estate?

DAVID SHALDERS: When me mother died they contested the will, actually contested it before they knew what was in it really, how much.

JENNY BROCKIE: Why do you think three contested the will?

DAVID SHALDERS: Oh, easy money, a bit of greed.

JENNY BROCKIE: How did you feel about them contesting the will?

DAVID SHALDERS: Oh, um, it's not so much them contesting the will, it's what you've worked for and built up and they're trying to take it off you. When me father died he was worth a about 800,000 so I've run the whole lot for nothing until me mother died and then she was supposed to be worth 2.7 million. So I've increased her estate by 2 million.

JENNY BROCKIE: Can you understand why your sisters might think they deserve a bigger chunk?


JENNY BROCKIE: Why, why can't you understand that?

DAVID SHALDERS: Well, they didn't work it, they didn't build it and your will's probably supposed to be will, isn't it? So like if I'd have known what was going to happen, I would have run me own farm, me mother would have had to sell hers 25 years ago and there would have been nothing to contest.

JENNY BROCKIE: So what happened? They contested the will?

DAVID SHALDERS: Two of them got an extra hundred grand and the youngest one got an extra 200,000.

JENNY BROCKIE: And how do you feel about that now?

DAVID SHALDERS: Well, I've got a million dollar debt that I'm paying off because of me sisters.

JENNY BROCKIE: Okay, Deirdre, when your mother died in 2004 she left her estate to you and your four siblings, how did she divide it?

DEIRDRE LAMPARD: She divided equally between the five but the oldest brother had passed away in a car accident so his children were to get his share. We would have got probably $57,000 each because it was only a $300,000 estate.

JENNY BROCKIE: Now as executor of the will you and your sister, who is here as well, ended up in the Supreme Court of Victoria. Why?

DEIRDRE LAMPARD: Because my brother, the remaining brother contested the will.

JENNY BROCKIE: How could he contest the will if you all got equal amounts and you were all siblings?

DEIRDRE LAMPARD: You tell me that Jenny, you tell me, because the law, part 4 of the Victorian Supreme Court Probates Act said is that if you feel your mother has a moral obligation to provide more for you than the others, then the Court will look at that. I would have thought with a common sense Judge she would have said this is ridiculous, you have a fifth share, go away. But she didn't.

JENNY BROCKIE: Describe for me why he was in a position to get more?

DEIRDRE LAMPARD: Well because he had, after his marriage broke up, returned to mum's house and had lived with her and then got a pay-out from his employer due to his alcoholism and then he, he basically went onto a disability pension. The disability was he was an alcoholic.

JENNY BROCKIE: Now the Judge said he needed more money because he was dependant on your mother and because he was on a disability pension?

DEIRDRE LAMPARD: That's what she said.

JENNY BROCKIE: And how did you feel about that?

DEIRDRE LAMPARD: We were appalled because to us it was never about the money, it was our mother's wish being challenged and you would not have got a fairer person than our mother and she used to say there'll be no arguments when I go because you can't be fairer than one share, everybody gets an equal share.

JENNY BROCKIE: So what was the financial position of everybody else who got the equal shares?

DEIRDRE LAMPARD: Well my brother who was passed away, his children were adults by that stage, we had a job, we had a husband and we owned a home because we had been frugal and done what most people do and pay a mortgage and didn't waste our money.

JENNY BROCKIE: And you felt that was unfair that, because he he'd done that?

DEIRDRE LAMPARD: Well he had had a home, he had had a marriage, he had a pay-out from his employer but when mum died he had nothing but a slate that he owed at the hotel because mum wasn't there to pay that slate off.

JENNY BROCKIE: How much extra did your brother get?

DEIRDRE LAMPARD: An extra $40,000.

JENNY BROCKIE: And you, what did that mean for all of you?

DEIRDRE LAMPARD: That meant that instead of our 57 we would have got about 35,000 because the Court costs were $80,000 out of an estate of $300,000.

JENNY BROCKIE: And that came out of the estate?

DEIRDRE LAMPARD: That came out of the estate. The law is stupid. If you've got an equal share of a will, whether you've contributed and got yourself a house, whether you've lost your house because of your weaknesses, why should we be punished because of his weaknesses?

JENNY BROCKIE: It's an interesting question, Alison, and you're a lawyer who deals with wills and estates. What's your reaction to that?

ALISON BUTLER, LAWYER: I think I agree, I think it's pretty tough in a situation like yours. But there are other examples where the law isn't so stupid. I mean the Court won't like favourably upon somebody who is a reckless spender but they do look at the competing needs for provision and you pointed out one of the major criticisms of this legislation, it can work very unfairly in that type of example.

JENNY BROCKIE: Okay. Prue, I know you've done a lot of research on contesting wills and succession law. When I was talking to people about doing this program they were really shocked by some of the things. You know, they think that their will is their last word?

PROFESSOR PRUE VINES, UNSW: I think what Deirdre said that was her will, I actually think that this is often not about the money, this is nearly always about the relationships.

DEIRDRE LAMPARD: Respect for my mother.

PROFESSOR PRUE VINES: You see it that way but your brother probably saw it as his needs and the Court clearly went for the needs in that particular case. But I think the point about cost is interesting.

JENNY BROCKIE: But how much the does the dead person's wishes figure in all of this?

PROFESSOR PRUE VINES: Well the thing is that we decided, our Parliament decided, you know, around 1900 that people could not be allowed to go on making wills where whatever they thought was important should happen because there was a very large proportion of men who are making wills, leaving everything to somebody else outside the family, and leaving their wives and children destitute. So we've come now…

DEIRDRE LAMPARD: But in this instance it was equal, a fair share so the Court should have just said in that instance look, you've got your share, go away.

PROFESSOR PRUE VINES: Well maybe they should.

DEIRDRE LAMPARD: The Judge said to us how your mother made that, remade that will two years prior to her death, you don't know when you're going to die but, she would have looked more favourably on the wishes within that will had it not been an eight year old will but a two year old will.

PROFESSOR PRUE VINES: Well I have to say that that's an unusual thing to be said.

DEIRDRE LAMPARD: So we all went out and updated our wills in the same vein as we had made…

JENNY BROCKIE: I can see people making the calls now actually.

DEIRDRE LAMPARD: That's the -- why can't you go to VCat or somewhere like that and have it disputed there where it's not going to cost, you know, a third of the estate?

JENNY BROCKIE: I'm going to talk for the dead people here because you know, that's kind of my role. But what about, I mean there are people who really don't like their families, you know, whose families have treated them really badly all their lives and they don't want to leave them a thing. You know, there are kids who have been horrible to their parents. Doesn't matter?

PROFESSOR PRUE VINES: Well it does matter, the Court will look at those things but the Court will no longer just allow people to say I think they treated me badly, because sometimes it turns out that the treating badly actually went both ways. It's pretty hard because they don't have the crystal ball that will tell them absolutely everything about everybody. All they can do is work with the evidence they have and sometimes that is not, that pushes them in a direction that, you know, I think in all your cases you probably are thinking the decision wasn't right.

JENNY BROCKIE: How many challenges to wills are successful?

PROFESSOR PRUE VINES: A lot, probably about three quarters. It's very, very high. I think it's a really big problem.

JENNY BROCKIE: And does that mean that a lot of wills are really unfair or what does that reflect?

PROFESSOR PRUE VINES: I think it reflects a situation where the law just says to the Judge look at all these factors and then come to a decision about whether that's the right thing, and so you end up with, with a lot of matters where there's too much of an incentive for people to come to Court and do the arguing.

JENNY BROCKIE: And what sorts of challenges to a will are likely to be most successful?

PROFESSOR PRUE VINES: Family provision, yes, so the kind that you are talking about where there was a challenge to the will. Challenges to wills on the basis of capacity or undue influence and so on are much less successful.

JENNY BROCKIE: So is your will really your last word John, you're a lawyer in this area as well, is it your last word? It doesn't sound like it?

JOHN de GROOT, LAWYER: Well it is your last word, there's no doubt about that so you can still make your will in any way you choose but whether in fact with a challenge the result will be as the will is written, that's what we're talking about.

FEMALE: Jenny, there's another question, what if you make a DVD? Like if you make a DVD when you're about 20 and you continue that through the years, every ten, fifteen years up until you're 60, 70 and you've got a whole history of what your children did and what your children didn't do, I mean how, how would that go in the Court? That's my question.

JENNY BROCKIE: Okay, lawyers how would that go in Court?

JOHN de GROOT: If it was compelling for my client's interests I think I'd try to find a way to get someone to watch it.

JENNY BROCKIE: Okay, but what standing would it have, would it have standing in a Court?

PROFESSOR PRUE VINES: Well it would be evidence from the deceased you could look at that, but it would only be the evidence of the deceased's view by isn't always definitive.

FEMALE: I know people that have done this so when…


FEMALE: Yes, yes.

FEMALE: Does your family get over that stuff?


FEMALE: I wouldn't want to hold a grudge for like fifty years or something, I'd want to forgive them and go okay, at the time I was really cheesed but you know we've gotten over it and matured. You know, not I'm going to get you when I die. What about love? No one's mentioned love.

JENNY BROCKIE: I want to go back to you saying you know people who've done this. People, plural.

FEMALE: Yes, people. Quite a few people have done it.

JENNY BROCKIE: Who are sitting in their lounge room or their garage doing a video about why they don't want to give money to particular…

FEMALE: You know, about the children and about what's happened over the years and all sort of things.

JENNY BROCKIE: And how long of these videos?

FEMALE: Some of these things go for a long time, yes, yes.

FEMALE 2: Hand them down to the children, like I hated this person just for that reason.

FEMALE: I don't think it's anything to go with hate in it.

JENNY BROCKIE: But it's about clarity?

FEMALE: Yes, it's about clarity.

JENNY BROCKIE: And about making it very clear what they want to happen.

FEMALE: That's right.

JENNY BROCKIE: What has - I mean this seems unusual to me. What has motivated those people you know to do that?

FEMALE: I don't know, I think they've just got a quirky sense of humour, perhaps something to do in your old age as you go along.

JENNY BROCKIE: Have you done it?


JENNY BROCKIE: Not saying. I can just see your family rifling through the drawers at home.

JENNY BROCKIE: How many people here don't have a will? Wow okay, a lot of hands going up. Why don't you have a will? Who wants to give me an idea of why?

MALE: After listening to all of this I really don't see what the point is.

JENNY BROCKIE: Okay. Anyone else want to share with us why they haven't done a will?

FEMALE: If you've got nothing, you know, nothing to put in a will you don't have to make a will anyway. I mean there's no point.

JENNY BROCKIE: What about the idea of having nothing? What do the lawyers think about this, about you don't need to write a will because you've got nothing? Imelda, you're a good person to answer this because you're CEO of the NSW Trustee and Guardians.

IMELDA DODDS, NSW TRUSTEE AND GUARDIAN: My immediate reaction is I know these excuses, we hear it often, they believe that they have nothing to leave largely because they think that they haven't got real estate. That's actually not true, they do have things to leave and there are important things that can be provided for in a will.


IMELDA DODDS: Oh, personal effects, there are small items, there are larger items that have got great emotional value that people overlook.

JENNY BROCKIE: But what about this point that after you hear all this, what's the point of writing one?

IMELDA DODDS: Well, the point of writing one is if you don't write one you die without a will which is called dying intestate and then there is a formula, and this does vary because this is a national program, it's important to know it varies from state to state, but I just want you to think about in your lifetime, how many relationships you might have had with a significant person that you would consider would equate to a de facto relationship or indeed a marriage, because if you die without a will, then all of those people may have a claim on your estate and our office administers estates that are both testate or intestate where we get the letters of administration, as they're called, and then we apply the rules of testate, intestate.

FEMALE: A lot of money of the estate for doing this?

IMELDA DODDS: We of course have a fee on the estate work that we do and that varies according to the size.

JENNY BROCKIE: And that would be automatic, I mean?


JENNY BROCKIE: If there is no will that process of the estate going to you is automatic?

IMELDA DODDS: Not automatic to us. This is a bit of a misnomer actually, people think that if you die without a will then the government comes along like a Hoover vacuum cleaner and takes it all up and of course that's absolutely not true.


PROFESSOR PRUE VINES: What I wanted to say was the vast majority of wills don't get challenged and the person's wishes are followed through. Because the family left behind and so on want to know what the person who died wanted.

JENNY BROCKIE: We talked about assets and stuff but another thing to do with wills of course is children. You know, if you have children and you don't have a will, what happens then?

IMELDA DODDS: Well this is another really important area. I mean we're stunned with our research when we see year in, year out, the percentage of parents of children who do not make a will and we're still looking at about 63, 64 percent of parents of children, we're talking minors, who haven't made a will and of course the issue of guardianship of your children, wishes about education, what you want to have happen to them, is not then provided for which is another really important reason for making a will.

JENNY BROCKIE: So how old do you think people should be when they make a will?

IMELDA DODDS: 18 and you should start thinking about it. No matter…

JENNY BROCKIE: No 18 year old thinks about making a will?


JENNY BROCKIE: I can't think of a single 18 year old I would have known who would have thought about making a will?

IMELDA DODDS: You know, Jenny, I have met a few of them. I think they're the most, they're the most…

JENNY BROCKIE: They must be friends of yours.

IMELDA DODDS: Well I start early on kids, you know, around about five I start talking. Seriously though, quite often young people may have some small nest egg, they may have seen experiences of others where wills weren't made. It's certainly a very, very low percentage in research and we want it to be far more than it is.

JENNY BROCKIE: Sorry, down here, yeah?

MALE: I'm obviously a young person, 21 years old, question there, if I was to make a will right now saying that everything is to be left to either my parents or my siblings - in twenty years’ time - if I don't change it, is that better than not making a will at all?

JOHN de GROOT: Well hopefully you might have married between now and then which means your will is automatically revoked by your marriage. So that's something to bear in mind.

MALE: That's a question I was going to ask, when does a will become invalid?

JOHN de GROOT: Well actual change of circumstances will never revoke a will, but, except marriage, unless you made it in contemplation of your marriage, and of course divorce cancels out, normally speaking around Australia cancels out provisions that you've made to your divorced spouse. You can formally revoke it in writing. You can revoke it by destruction. Some people are quite creative in that regard. There's one famous case where a gentleman was not liked by the will maker so she took the scissors to her will and cut his name out every time it appeared and that was considered to be obviously as it was, destruction of those provisions.

JENNY BROCKIE: Fairly firm indication.

IMELDA DODDS: Jenny, if I could just add very quickly to that, I mean you're 21?

MALE: 21, yes.

IMELDA DODDS: And if you were to make the will today, my strongest advice to you, and I think of, of all lawyers and people who make wills and my colleagues, trustees around Australia, would be that you update your will regularly and…

JENNY BROCKIE: What does that mean, how often?

IMELDA DODDS: Well, we certainly say you should be revisiting it every, looking at it every three to five years.

JENNY BROCKIE: Zoe, you were very explicitly left it out of your grandfather's will in 1992, when did you find out?

ZOE KELLAM: In 2011 when I was 25.

JENNY BROCKIE: Now the will was quite specific in making a point of leaving you out. I think we've got a picture of it here. Here you are, each of the grandchildren except Zoe. Why were you left out like that?

ZOE KELLAM: Well, my grandfather had given my father enough money to pay off my mother to give half the value of the marital home when the marriage broke down.

JENNY BROCKIE: When they split up?

ZOE KELLAM: Yes, and he'd spent that in the four or so years following and my grandfather then had to pay again this premature inheritance to my father so he penalised me along with my father.

JENNY BROCKIE: What did the other grandchildren get?

ZOE KELLAM: At the time it was $25,000 worth of AFI shares, they're still stock listed.

JENNY BROCKIE: How did you react when you found out at 25 what had happened to all those years ago? So you would have been what, eight or something when it happened?

ZOE KELLAM: A little under seven.


ZOE KELLAM: I was gutted. I felt abandoned.

JENNY BROCKIE: I mean you're using very strong language to describe how you felt. Why did you feel this so keenly? You know, why couldn't you just look at it and go oh, well, you know, that's, that's sort of incredibly bad luck for me, but I can kind of understand that if he gave money to my father at some point, he thought that would benefit me when my father died.

ZOE KELLAM: I really wish my grandfather had kept control of the purse strings to ensure that it actually benefited our family I particularly felt abandoned by my father and left in the dark for eighteen years or so. And my aunts and uncles didn't tell me either. You know, if I had been my grandfather I would have been thinking this is the child who'll need therapy, not this is the child who I'll stick with the bill for the divorce and her father's feckless behaviour with money.

JENNY BROCKIE: Wow, you're really angry about it, huh?

ZOE KELLAM: I just sort of felt kicked out of the club. I think I was treated as an extension of my father, as the whipping girl, you know.

JENNY BROCKIE: That gets the punishment in a way. David, when your parents died they left their entire estate to you, you have an older sister who got nothing, how did you find out she was going to contest the will?

DAVID VASILJEVSKI: Well she waited till the last day of the twelve month period that she can contest the will. We got a letter from her legal, from her lawyer saying that she wants, she’s entitled to some claim for that estate.

JENNY BROCKIE: And do you think she had a write to contest it, given that you got all of it?

DAVID VASILJEVSKI: Well no, my parents were loving parents and they were fair. We made an agreement thirty years earlier where she decided that she wanted to buy her own house with her new husband and there was going to be, she was willing to take a payment of half of the share of hers thirty years earlier.

JENNY BROCKIE: And she bought a house with that?

DAVID VASILJEVSKI: Yeah, she bought a house and yeah, so she was already debt free while I had to save again and start off again fresh with my own mortgage but I had to wait thirty years to get my half, and there was a will made out in front of both of us and it was put in a safety deposit box, in the Commonwealth Bank.

JENNY BROCKIE: How did you react when this happened, when she…

DAVID VASILJEVSKI: Well I was disappointed, I was very upset because we have a very close family, you know, we saw each other regularly, the family the kids and everybody, we had all the gatherings and stuff and it was just a very disappointing moment in our lives.

JENNY BROCKIE: How big was the estate?

DAVID VASILJEVSKI: In her interpretation it was worth between 700 and a million dollars. But the house was…

JENNY BROCKIE: So this was the house?

DAVID VASILJEVSKI: This was the house, yes, but the house was really run down.

JENNY BROCKIE: Okay and her house, how much, that she'd been given for earlier?

DAVID VASILJEVSKI: Well the house that she purchased thirty years ago she ended up having a double storey split level at Hurstville which was worth between, you know, over $1.5 million so she already had an advancement while I had to wait thirty years to get my half.

JENNY BROCKIE: What happened when she contested the will?

DAVID VASILJEVSKI: Well we went to mediation and the figure that she was asking was unrealistic because I didn't have the money in my pocket, so she made us another counter offer and then we decided with the family and the solicitor that if we went to Court it was going to cost us a lot more, it's not cheap so we decided that the best outcome is that we were going to just pay her out a figure.

JENNY BROCKIE: And how much did she get?

DAVID VASILJEVSKI: Well she ended up getting $90,000 for herself and plus we had to pay her legal fees.

JENNY BROCKIE: How much was that?


NAOMI VASILJEVSKI: It was 150,000 all up.


DEIRDRE LAMPARD: Ditto, well I mean, we went to mediation which is the biggest rip off, it’s a thousand dollars an hour and the court directs you to do that and we got to mediation and we offered our brother 75 thousand, which he would have got 57 and we upped it to 75 sand his lawyers said, um, no he wants the lot, he wanted the whole estate and make no mistake, my client will get it if we go to court, so we got up and walked out.

JENNY BROCKIE: Sorry Tania, yes?

TANIA DARVENIZA: And actually, I had to save money for years, it cost me 185 thousand dollars in legal bills before we got to mediation. So it costs money to fight money.

JENNY BROCKIE: You say you saved money for this?

TANIA DARVENIZA: I knew it was coming, I was banking that he was going to die.

JENNY BROCKIE: How long did you save for, how many years?

TANIA DARVENIZA: Maybe twenty.


TANIA DARVENIZA: You knew there was going to be trouble.

JENNY BROCKIE: What if you had done something else with that money, what if you had invested, how much money did you have in that fund when he died?


JENNY BROCKIE: okay, so what if…

TANIA DARVENIZA: I was cleaned out.

JENNY BROCKIE: What if you had invested that money in another property or something, would you have been better off?

TANIA DARVENIZA: I was putting it in interest terms and things, meanwhile I started my own business, worked for somebody else, started my own business, made my own money. I didn’t sit around waiting but I saved money.

JENNY BROCKIE: David, do you think that there was an emotional component in this as well? I mean the idea of the will being read and you get nothing, you get the house. Do you think it plays to sort of family emotions as well in a situation like that?

DAVID VASILJEVSKI: No, I don't think so. I think it was more the fact that she, people just seem to see dollar signs and as the people said, easy money, they don't have to do anything about it.

JENNY BROCKIE: We spoke to your sister, she didn't want to come on the program but she said it's a shame it's come to this but the law's the law.

DAVID VASILJEVSKI: Yeah, that's right.

NAOMI VASILJEVSKI: Can I just add to that Jenny? That wasn't the only conditions that he did, he paid out half the estate back in 1985 when she bought her house in 1985. He was also made an agreement that he'll bury both those parents and also care for them in their old age. Now when his father passed away in 2002 we were burdened further with the cost of that funeral which cost us just over $20,000. She sat back and allowed us to pay for that because that was the agreement and she accepted the fact that they had made that agreement and she had had her money and had that advancement in life that David never had. And then sadly there was a fallout in the family.

JENNY BROCKIE: I want to ask some of the lawyers here, I mean how much does emotion come into this?

ALISON BUTLER: An enormous amount, enormous.

JOHN de GROOT: Very strong, I'd agree with that and I certainly have often put in a will the fact that I've made differential arrangements amongst you is no reflection on the love that I have for you, that I love you all equally, blah blah blah, not blah, blah, blah, but that sort of thing because I know it helps for everybody to feel loved and that's genuinely how many people feel.

ALISON BUTLER: I think grief, the combination of grief and money is an awful mix too because there's often, you know, as often allegations of greed and people are still grieving and then they're facing a legal process that's difficult to understand and that they're quite angry about. Both sides are angry, one side's angry they've been left out and the other side's angry that the other side's got the hide to contest it so there's a hell of a lot of emotion.

JENNY BROCKIE: And you're David and Naomi's lawyer?


JENNY BROCKIE: So you saw this play out?

ALISON BUTLER: We went through this together, yes.

JENNY BROCKIE: And do you think there was emotion in that in terms of the driving?


JENNY BROCKIE: Like how did you read what was going on there?

ALISON BUTLER: Well David's case was unusual in the sense that there was a family agreement thirty years ago, but the only people who witnessed that agreement were the four family members and two of them are no longer with us. So that was something that the evidence would come down to whether the Judge believed David or his sister.

JENNY BROCKIE: So that wasn't recognised by the Court as something happened?

ALISON BUTLER: No, it was an oral agreement that was made thirty years ago amongst family members.

JENNY BROCKIE: Well it didn't have much legal stance?

ALISON BUTLER: Well David's case didn't go to Court.

JENNY BROCKIE: So was it better to settle or not?

ALISON BUTLER: Always better to settle. I hesitate to say always but almost always better to settle.


ALISON BUTLER: In this case definitely. Well in this case David's sister made an offer that we had considered, our barrister and me, was within the range of what a Judge might order if it went to Court. And when you calculate the legal fees would be doubled, it was just about numbers in deciding to keep out of Court and settle that case and keep the money in the family as opposed to lining the pockets of lawyers.



JENNY BROCKIE: David, how do you feel now about settling?

DAVID VASILJEVSKI: Look I'm disappointed, it wasn't an outcome my parents wanted. I mean as I said they loved us both equally and they wanted us to both to have half each, half of the will each and it never turned out that way.

JENNY BROCKIE: Imelda, what's the most common driver for people to contest wills?

IMELDA DODDS: Certainly in the reported cases most of, the most prevalent I think is a feeling of entitlement, so people have felt entitled to share in the estate.

JENNY BROCKIE: Who feels entitled?

IMELDA DODDS: Adult children, more than any other group will feel a sense of having been left out, which you can also read down as an entitlement as well.

JENNY BROCKIE: Prue, what about step families, second, third families like you have heard with Tania.

PROFESSOR PRUE VINES: Well I did some research, I did some research a few years ago looking at what happens to the costs in family provision claims and I thought I'd find that the costs were driven up a lot more in cases between first families and the second spouse. But it wasn't them, it was siblings. So my feeling is that actually siblings are watching each other quite closely, they clearly are doing this when they're…

JENNY BROCKIE: A horrible idea?

PROFESSOR PRUE VINES: When they're six and seven and eight perhaps John could substantiate the kinds of affidavits that often have to be given that people want to put into these cases.


PROFESSOR PRUE VINES: Well sometimes they're about what Auntie Mary said in 1953.

JOHN de GROOT: Or fights in the sand pit, that's a good one.

JENNY BROCKIE: Fights in the sandpit, you're not serious?

JOHN de GROOT: Those sorts of things. It's amazing how far back people want to go about sibling rivalry and favouritism and disagreements and so on. Now of course lawyers have an obligation to stick to the facts that are relevant, but not everybody follows that counsel I'm afraid and you do get a lot of trivia and just plain nastiness that doesn't take the case any further. And that's that emotion coming out again and people want to play that emotion through their affidavits.

JENNY BROCKIE: Neil, you and your wife Lorraine have been listening to all of this I'm sure with great interest because you've decided to leave your substantial estate, to charity and nothing to blood relatives. Why?

NEIL PERRY: Well, for a start we chose not to have children so we haven't got that complication. But that just came down to our wishes, it's just something that we chose to do. As time has gone on we've sharpened our thinking and have chosen to give it to separate entities.

JENNY BROCKIE: Who are you going to leave it to?

LORRAINE PERRY: We both have an interest in indigenous education so we would be looking at providing scholarships to provide an education for indigenous children to pursue their education through primary, secondary, and hopefully through tertiary.

JENNY BROCKIE: And there's another organisation as well?

LORRAINE PERRY: Yes, the other interest we have is companion animal research, looking at the benefits of companion animals in palliative care and clinical situations.

JENNY BROCKIE: Okay. How does your extended family feel about this?

LORRAINE PERRY: Oh, we haven't particularly been open about what we've decided to do.

JENNY BROCKIE: Well that's just changed, hasn't it? How do you think they'll react to seeing you on national television saying you're leaving everything to these two organisations?

LORRAINE PERRY: I don't think there'll be any disquiet. I think…

JENNY BROCKIE: You're doing your own video here right now.

LORRAINE PERRY: No, I think there's an appreciation that you know, we've not had children and we have got really very strong interests and that's what we want to do.

JENNY BROCKIE: So have you locked this will down with a lawyer and written it all out in detail and made it as watertight as you can? What have you done?

LORRAINE PERRY: We haven't discussed it with a lawyer. We've written it down ourselves. I think coming to this program might prompt us to.

JENNY BROCKIE: You're scoping out the lawyers here, just to, how would you feel if your wills were contested?

LORRAINE PERRY: Well I'll be dead, won't worry about it.

JENNY BROCKIE: No, but now how would you feel about the idea of your will being contested?

LORRAINE PERRY: Well, it's just the way of the world I'm afraid. You know, if that's the way somebody will come along and suggest that they have an entitlement to part of our estate, then so be it.

JENNY BROCKIE: Prue, is mediation compulsory when a will is contested in all states?

PROFESSOR PRUE VINES: I'm not sure about every state but the vast majority of states it is compulsory.

JENNY BROCKIE: Okay but it's an expensive process by the sound of it?

PROFESSOR PRUE VINES: It varies. In some states it done by the Court themselves and is relatively cheap. In other states you can have that or hire a private mediator, in which case it tends to be much more expensive.


DAVID SHALDERS: Mediation is all, it's pretty much blackmail.


DAVID SHALDERS: If you don't give them this amount, it will cost you a heap more with lawyers and that so give them half a million instead of a million.

JENNY BROCKIE: But you offered $10,000 between three of them?


JENNY BROCKIE: Out of a $2.7 million estate?


JENNY BROCKIE: And you thought that was fair?

DAVID SHALDERS: No, it wasn't meant to be fair, that was meant to be so I didn't get the costs.

JENNY BROCKIE: Okay. How much did it cost, you had to go to Court in the end?


JENNY BROCKIE: How much did it cost?


JENNY BROCKIE: That was for the Court case, that was for the whole process?

DAVID SHALDERS: That's the bill I got for the Court costs.

JENNY BROCKIE: Okay. And just recap where did we, where did you end up then all of you, what did your sisters get, what did you get?

DAVID SHALDERS: Two sisters that didn't go to Court got 120, 130,000; two got 250 and one got 350.


DAVID SHALDERS: And I got the thousand acres.

JENNY BROCKIE: Which is worth?

DAVID SHALDERS: About 2 million.

JENNY BROCKIE: Wouldn't it have been easier and better financially to make a higher offer to them earlier?

DAVID SHALDERS: Well, the will was straightforward and see and my point of view, I increased the asset by that.

JENNY BROCKIE: The value of the farm?

DAVID SHALDERS: By $2 million.

JENNY BROCKIE: As the only son, did you feel you were entitled to the farm as well?

DAVID SHALDERS: Well, I've read a bit lately and they seem to think that if you, the only son or a son you get the land.

JENNY BROCKIE: Did you think that though?

DAVID SHALDERS: No, one that works it gets it. That's always been the deal until lately. Plenty of blokes have got daughters on farms you know? If you've got two girls you don't go and get a sex change for them or anything.

JENNY BROCKIE: David, you're an only son too, did that come into it at all for you?


JENNY BROCKIE: The sense that you should get the family home?

DAVID VASILJEVSKI: No, absolutely not. As I said my parents were fair, they loved us both equally and they treated us equally. It didn't make any difference whether we were, you know, boys or two girls or whatever.

JENNY BROCKIE: Deirdre and David, you both made submissions to Victorian Law Reform Commission about inheritance laws. Why and what did you submit, what did you say?

DEIRDRE LAMPARD: My main submission was one, if you've got an equal share in a will you should have no right to ever contest it. You shouldn't be punished, as we were, because you'd been frugal. And when you're going through this you can't even grieve for the loss of your relative and that's the hardest part, because this to us was never about the money.

JENNY BROCKIE: David, what about your submission, what was the basis of what you wanted changed?

DAVID SHALDERS: When a Judge changes, with farmers and that, changes the will, what he's doing is changing the past because things have been put in place thirty years back. And if anyone knew what was going to happen at the finish, like I wouldn't have been working me mother's farm, but you can't change that. But a Judge does and that is just totally and utterly ridiculous, changing the past.

JENNY BROCKIE: Prue, do you think, the law should change in some way and if so, where should it change?

PROFESSOR PRUE VINES: Well I think, my personal view is the law should reduce the people who are eligible to challenge under family provision, in particular, and I think grownups who can look after themselves should not be actually eligible. That's a pretty radical view, but it seems to me that…

JENNY BROCKIE: So who can challenge now, how far down the family tree can you go to challenge?

PROFESSOR PRUE VINES: Well it depends on your jurisdiction but it will mostly be children. Victoria, until recently, it was anybody who could establish any kind of relationship with the deceased. That's now changed to a much narrower group and I think that's a step in the right direction. Well I think there's a difference between the right to give, which I think the testator should have, and the right to receive and I don't think there is necessarily a right to receive, there’s only the right to give.

TANIA DARVENIZA: Even when the person who has the massive estate has had those children not at school and had them working instead of going to school and working on weekends and cleaning out sewerage lines as eight year olds?

PROFESSOR PRUE VINES: You should have other avenues to deal with that. I don't think family provision is really the proper avenue to deal with that.


JOHN de GROOT: I think what we're hearing of course is that if you just have a blanket provision that if you're an adult you can't bring a claim against your parents' estate it just totally, in my opinion, brings you into a potentially very unjust territory.

JENNY BROCKIE: Okay, Melinda, you're a just about to write your will, what do you think after hearing all this?

MELINDA HAMWOOD: Oh, I was confused before. I'm really confused now. I'm going to need some serious help.

JENNY BROCKIE: Imelda, is there any way to ensure that your wishes are carried out writing a will?

IMELDA DODDS: I'm not a lawyer but I don't know a lawyer or a succession lawyer who says that it's absolutely possible to write the watertight will. But it is possible to get the best possible advice around it and that's really important, get it drafted properly, particularly if you've got specific considerations that you want.

JENNY BROCKIE: So what about the DIY will sets that people can buy?

IMELDA DODDS: We most definitely are not fans of them. They're not properly constructed, there are often errors in witnessing which can make the will absolutely null and void.

JENNY BROCKIE: Tania, what are you doing about your own will? Are you leaving the money to your children?


JENNY BROCKIE: All of them?

TANIA DARVENIZA: Yes, but it's very…

JENNY BROCKIE: That was a hesitant yes.

TANIA DARVENIZA: Meticulously written.

JENNY BROCKIE: Okay. Evenly, split evenly?


JENNY BROCKIE: Why is it that I just don't really think you're telling me everything here? My point is, are you wanting to leave people out of your will?

TANIA DARVENIZA: I have not left any of my children out of my will, no, but it's been meticulously written.

JENNY BROCKIE: Okay, Naomi and David, what have you done about your wills?

NAOMI VASILIJEVSKI: Well we've got two daughters add we've left it 50 percent to each daughter as I would assume most parents would consider their children.

JENNY BROCKIE: Interested Margaret in your reaction to all of this as the next generation, I mean what's it been like?

MARGARET VASILJEVSKI: Traumatic that I lost an auntie, uncle, cousins and I watched my parents suffer over something which to me is completely clear-cut.

JENNY BROCKIE: So how has that impacted on you in terms of what you'll do?

MARGARET VASILJEVSKI: I will never challenge a will. No way, my sister, I love my sister, 50/50. It's not my money, it's not my things, I'm happy for anything, like I'm not greedy.

JENNY BROCKIE: But it's had a really destructive impact on the family?

MARGARET VASILJEVSKI: Unfortunately, yes.

JENNY BROCKIE: David, has it made you rethink your will?


JENNY BROCKIE: How, what have you done?

DAVID SHALDERS: Well as soon as I kark it I go into a trust which is supposed to be very hard to contest.

JENNY BROCKIE: Lorraine, you're just shaking your head in dismay at this point?

LORRAINE PERRY: It would be nice to think that people who have got simple, clear thinking ideas can document their wishes more simply and clearly without necessarily having to go through the complexity and the cost.

JENNY BROCKIE: David, how long has it been since you've spoken to your sisters?

DAVID SHALDERS: Probably since they walked out of Court, I suppose.

JENNY BROCKIE: When was that? How many years ago?

DAVID SHALDERS: '09, I suppose.

JENNY BROCKIE: Do you think you'll ever speak to them again?

DAVID SHALDERS: I'm positive I won't.

JENNY BROCKIE: Would anything change that?


JENNY BROCKIE: David, do you think you'll ever speak to your sister again?

DAVID VASILJEVSKI: Well we're a small family and I love my sister dearly and at the moment I'm very disappointed that the loyalty and the trust was broken.

JENNY BROCKIE: Naomi, what do you think?

NAOMI VASILJEVSKI: To me I'll always have the door open.

JENNY BROCKIE: Okay we have to leave it there, we're out of time. Thank you all so much for joining us tonight, I'm sure a lot of people are going to want to keep talking about this too. I just have a feeling so let's keep talking on Twitter and on Facebook. Thanks everyone.