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  • Writer's pictureChris Parker

I don't want to include my estranged family member in my Will. What can I do?

When you make a Will, you need to consider that under the laws called “Family Provision” some people are entitled to make a claim against your estate when you die, regardless of what you put in your Will.

What is Family Provision?

  • A person who is an eligible person (spouse, child, step-child or dependant) can apply for a Court order that provision be made out of your estate for the maintenance and support of that person.

  • A person is your “dependant” if he or she was your parent, parent of your child/ren, under 18 years or defacto spouse of at least 2 years and was being wholly or substantially maintained or supported (otherwise than in exchange for some payment) by you at the time of your death.

When Can an Application be Made?

  • An eligible person may make an application if no provision has been made for them in your will or the provision that has been made does not adequately provide for their proper maintenance and support.

  • If the applicant is your dependent, he or she must also demonstrate a need for continued maintenance and that in the circumstances of the case it is proper that some provision be made for them.

When will an Applicant be Successful?

  • An eligible person who applies for a Family Provision Order will be successful if the Court decides that the applicant has been left without adequate provision for his or her maintenance and support; and in the circumstances and in the exercise of its discretion it is proper to make an order.

  • The Court will balance the needs of the applicant against the provision (if any) made for that person. Need is measured by considering the ability of that person to meet his or her financial responsibilities and the deceased’s moral duty to make provision for the person making the claim. Need is measured against the size of the estate and any other competing claims.

  • The Court will also consider the applicant’s standard of living or “station in life” during the deceased’s person’s lifetime.

How Much will the Court Award a Successful Applicant?

  • There is no fixed formula for determining how much a successful applicant will be awarded. The Court has a discretion to Order an amount that it considers fit. As an extreme example, in a case where an applicant’s claim is far stronger than that of the persons who have been provided for in the Will, a Court might order that the entire estate go to the applicant.

How can I Avoid Family Provision applications?

  • The most effective way to avoid Family Provision applications is to make adequate provision in your Will for eligible people which may include leaving a gift of some money or property to them in your Will.

  • There ways that you can minimise the risk of a successful Family Provision application such as:-

    • A statutory Declaration setting out the reasons why you do not want a particular eligible person to benefit from your estate. The Court will take your wishes into account, but may still make an order contrary to those wishes.

    • You can dispose of all or part of your property whilst you are still alive.

    • Property that is given away because of a legally enforceable contract that you entered into during your lifetime is not available out of which to “pay” a successful claim.

    • Property such as a house that is held by you and another person as joint tenants never forms part of your estate. The surviving joint tenant gets the property when you die. This means that it is not available property from which to make a Family Provision order.

    • It is impossible to be completely precise, however the best way to minimise the risk of an application is to make some provision for that eligible person which may discourage an application.

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