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Frozen relatives make for frosty wills

By Michael Pelly
July 5, 2004

Beware the frozen embryo. And while you're at it, family feuds and Sydney property prices are also worth considering because litigation over wills has doubled in the past three years.

Last year 202 people contested wills in the Supreme Court - up from 132 cases in 2002 and 101 in 2000 - largely because of increasingly complex family situations.

As wills expert Richard Neal says: "Solicitors would not have thought to ask 'do your children have any frozen embryos that they might want to use?'."

The Supreme Court decided that two children born after their grandmother's death could not share in her estate because they did not fit the definition of "survive in its ordinary sense".

Three years after the woman died, her son and his wife used two of four frozen embryos and twins were born late in 2002. The other two remain.

Mr Neal, a solicitor with Teece Hodgson & Ward, said the grandmother knew the embryos existed and took that into account when preparing a will. He said the decision last year meant that solicitors might have to be even more specific.

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"The law used to cover children that were in contemplation such as the pregnant daughter. Where we are still trying to work out the answer is where you have in-vitro fertilisation."

And what if a man agreed informally to be a donor and there was no other partner?

"If the child is yours then the child is yours ... the result would be the same as if you had a sexual relationship with that person and the child was born. It's then a DNA issue."

Mr Neal explained that under the Status of Children Act, whether a child is born inside or outside wedlock is irrelevant. And the Family Provision Act means that even the equal split between family members could be challenged if one person's needs were greater.

A parent who remarries, defactos and step children can all create problems for those making wills.

"People's circumstances are more complicated. They have a more complicated past and sometimes a more complicated present."

Sydney house prices had also created a bigger pie to carve up.

"In the past people may have had a house, a few other investments ... but not a great deal more," Mr Neal said. "The value of Sydney real estate is something to fight about."