What we can learn from Tina Turner

When legendary “Queen of Rock”, Tina Turner sadly passed away on 24 May this year, she left behind an estimated $250 million fortune. 

Tina Turner left behind no blood descendants as both her sons died before her. She was survived by her second husband Erwin Bach and two step-sons (first husband Ike Turner’s sons from a previous relationship who Turner legally adopted during their marriage). Despite this, the media reports that it is unlikely that the family will be involved in any legal battles. Tina Turner allegedly settled all her estate matters back in 2021 to forestall her family fighting over her fortune. 

Few of us will have accrued as large a fortune as Tina Turner during our lifetimes, but like Tina Turner, most of us still need to put in place a comprehensive estate plan to avoid a range of issues that may arise and cause wastage to our estates after our deaths, some of them resulting in legal proceedings.

In NSW alone, the average cost to contest a Will is approximately $10,000 if the matter stays out of Court. Once Court proceedings are issued, an estate that has to defend against a single-family provision claim can easily lose $100,000.00 in legal fees and charges. This may not be a considerable loss if the fortune in dispute consists of $250 million, but for most estates in Australia legal costs are a serious concern and

this is especially true where the existence of a large estate attracts the interest of multiple claimants.

In all states and territories in Australia there are legislation in force that permits eligible persons who claim they have received no provision or not enough provision to make an application to Court for further provision out of a deceased’s person’s estate (these applications are commonly known in NSW as family provision claims).

In NSW the Judge hearing the dispute has discretion to determine who pays the legal costs for a claim. However, most disputes are settled before the conclusion of a defended hearing and this means that the issue of costs is negotiated between the parties with the result that the executor who is defending the terms of the Will, often agrees to settlement terms that provide that the legal fees incurred by the executor to defend the claim will be paid out of estate funds. Depending on the strength of the claim, the executor may also agree that the estate pays the legal fees incurred by the claimant.

Family provision claims (one of the most common claims) are not just financially harmful, the legacy of anger and suspicion that accompanies them can have a lasting disruptive effect on the families involved.

As there is no single set way in which to prevent a family provision claim from being made against an estate, careful estate planning is essential to pre-empt wasteful and distressing legal battles.

A common misconception is that by making some provision for a family member as opposed to no provision, a testator (the person making the Will) can prevent the family member from making a claim against their estate after their death. 

The truth is that family provision legislation in Australia asks the Court to exercise a discretionary judgment as to how much provision is adequate for the person making the claim. In considering an application the Court must consider a range of factual matters.

Calloway JA in Gray v Harrison [1997] 2 VR 359 at 366 stated “There is no single provision of which it may be said that a wise and just testator would have made. There is instead a range of appropriate provisions …minds may legitimately differ as to the provision that should be made”.

What is required as Calloway JA explained in Grey v Harrison at 367, is “an instinctive synthesis that takes into account all of the relevant factors and gives them due weight.”

In NSW Section 60 of the Succession Act 2006 (NSW) sets out the matters to be regarded by the Court when considering an application for family provision orders. The facts known to the Court during each application will be different, which means that the decision of the Court will vary from case to case.

This means that if a particular testator left her child the amount of $30,000 in her Will, the bequest itself will not stop the same child from making a claim to the Court for greater provision out of the testator’s estate. It will still be open to the Court to decide that in all the relevant circumstances of the matter, greater provision should be made.

Gleeson CJ said in Vigolo v Boston (2005) 221 CLR 191; [2005] HCA 11 at [5] to [6] that the legislation required the Court to make assessment of what is ‘adequate’ and ‘proper’ provision.

For this reason, accurate estate planning involves much more than just the simple implementation of a standard set of avoidance tactics. The individual nature of families and their wealth, including the diversification of assets, the growth of wealth in superannuation, the frequency of marriage breakdowns and re-partnering all contribute to increasing complexity in succession planning.

With a range of documents and directions potentially applying upon death, legal practitioners in the area of wills and estates are expected to take a holistic approach by looking at all the circumstances of the clients. Estate planning involves more than a cleverly drafted Will, it can extend to the preparation of various documents, consultation with a range of professionals and the restructuring of assets to suit each client’s needs.

In conclusion, as Tina Turner realised, if you have resources that you want to preserve for loved ones, it is wise to have your estate planning settled well in advance of any health crisis or unexpected accident that may rob you of the time and ability to do so in the carefully considered manner required to properly protect those you love.