PO Box 6061, O'Connor, ACT 2602 Australia+61 414543735mediation@kevinlonsdale.com.au
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PO Box 6061, O'Connor, ACT 2602 Australia+61 414543735mediation@kevinlonsdale.com.au

Resolving arguments over family assets

Resolving arguments over family assets

This case went all the way to the High Court of Australia

In 2011 the proportion of people aged over 65 in Australia was 14% and growing where many of these people are parents who have children, grandchildren and great grandchildren.

When I mention to parents and their siblings that as parents age they will be dealing with complex situations that they have never contemplated, especially when there have been second or more marriages and perhaps relationships, they look at me as if none of this could happen to them.

An example of what can happen was the recent High Court ruling of Stanford v Stanford [2012] HCA 52, http://www.austlii.edu.au/au/cases/cth/HCA/2012/52.html. The facts are set out at [4] and following. In brief the husband and his wife had been in a second marriage for 37 years prior to the wife suffering a stroke that required her to be admitted into permanent full time care. Her daughter, as case guardian, applied to the court to have the family home sold and their net assets divided equally. The High Court ruled that in this case it was not just and equitable to separate the couple assets.

The facts show that the parents and children had not communicated important issues to each other.

I raise this case to demonstrate the types of complexities that can occur especially when families do not talk among themselves as partners or parents age. For instance Mr Stanford made a will but did not make Mrs Stanford aware of what he had done. Mrs Stanford signed an Enduring Power of Attorney in favour of her daughters. Mr Stanford was not made aware of this.

While mediation may not have kept this case out of the court nevertheless a mediator skilled in family or senior mediation could have provided the neutral environment for the families to discuss these and other issues, hence saving the cost of legal fees. These legal fees, prior to the High Court hearing, were for Mr Stanford, $95,403.

The lesson is that the earlier in time that family members get together to air their concerns, the less chance there is, of friction being generated between the family members, that could continue even after the death of the parents.