Let's start with a chat
For many people, making a Will is easy – they leave everything they own to their spouse and, once their spouse also passes away, everything is left to all their children.
For others, though, their Wills are much more complicated. This may be because of conflicts in the family such that a parent may not want to leave anything to an adult child they haven’t seen in a decade. Blended families are also a factor – what if a person has a family that includes children from previous relationships and stepchildren from their current one? Who should be included in their Will?
It is up to the testator (the person making a Will) to decide how to leave their estate, taking into account their own particular family and their own wishes. However, they should make this decision only after considering what might happen after they have passed away, if a disappointed family member decides to ‘challenge’ the Will.
The law provides a mechanism for family members to challenge a Will if they feel that they have been unfairly excluded. They can make an application to a Court for better provision from the testator’s estate. This is called a Family Provision Application.
Queensland’s Succession Act states that if a testator dies and does not make adequate provision for the ‘proper maintenance and support’ of a spouse, child, or dependant, then the Court might order that such provision be made from the estate. Essentially, the Court has power to change what was intended by the testator and make different distributions of the estate.
Jointly owned assets don’t form part of your estate. They pass ‘by survivorship’ to the surviving spouse or co-owner. Assets held by you as a tenant-in-common pass under your Will to your nominated beneficiaries.
Very few of these matters end up in front of a Judge, as most families come to some agreement before that happens. It is still useful, however, to use the same principles that the Court uses in resolving family disputes in this area.
Only the following relatives of a deceased person may make an application:
Key points to note from this list are:
A Court does not alter the terms of a person’s Will lightly. It does so only if it is absolutely necessary in order to do justice to everyone.
Firstly, it is for the applicant to demonstrate that they need extra provision from an estate. After that, the Court will take into account many matters, such as:
There is no single answer to the question of what a Court will do in every situation. The Court considers every matter on its own facts and makes a decision based on the whole (and not just one part) of the circumstances.
Estrangement between a testator and family members is often the most important factor in this area. These are some examples of statements made by Courts over the years:
The Courts try to balance an applicant’s need for provision (but considering any misconduct by them) against a testator’s moral duty to provide for their family (but also their right to deny provision to an applicant with whom there was an estrangement).
There is no hard-and-fast rule about which party will end up paying for the costs of an application. It is possible that the costs of an application for family provision will be borne by the estate and not the applicant, particularly in cases where the application has been successful. Legal costs are almost always a consideration in these matters. The question asked is: is it worth spending most, or a considerable portion of the estate assets on an argument about who gets those assets?
Knowing that a Will can be challenged, people often ask ‘Why do a Will at all?’ The short answer is that, if you do not do your own Will, then there is absolutely no chance of your wishes being carried out. Your estate will just be divided strictly in accordance with the laws of intestacy. Having a Will, on the other hand, means that your family and the Court know what your intentions were, and they use those as a starting point in distributing your estate.
There are a range of actions which a testator can take, either during their life or in their estate planning, to minimise the chances of a Family Provision application. These could be discussed with a lawyer when a testator is giving instructions for their Will.
We have experienced lawyers who can advise and draft your Will and all other estate planning documents. We make the process as simple and affordable as possible.