Can you, by careful drafting, prevent a claim being made on your estate?
In New South Wales you can leave your estate to whomsoever you wish.
The
Family Provision Act (1982)(FPA) restricts that freedom to make a will by allowing classes of people, defined in the FPA as “eligible persons”, to make a claim if those persons consider they have been left with inadequate provision for their proper maintenance, education and advancement in life. For details of who is an eligible person
click here.
The FPA and the manner in which it is interpreted by the Courts impose upon a willmaker an obligation to provide for eligible persons and the onus to do so allows eligible persons to apply to the Court for a share (or an increased share) of the estate and/or “notional estate” of the will-maker. For an article on notional estate
click here.
When making your will, if it is your intention to exclude an eligible person from receiving benefits from your estate, you should be aware that the FPA can override your wishes.
If you do not make adequate provision for eligible persons to whom you owe a moral obligation those eligible persons can bring a claim under the FPA and may obtain an order for provision out of the estate, which may have a significant impact in terms of costs and the size of the estate.
Surviving spouses, defactos and children, particularly children in their infancy or with a disability, have the strongest claims.
Statements by the deceased person are admissible as evidence under section 32 of the FPA. Where the willmaker is determined to exclude a beneficiary, the use of a Statutory Declaration by the willmaker can be useful where the statement is carefully prepared, expressed rationally and is not exaggerated or inaccurate. If the statement amounts to an emotive diatribe it can have the opposite effect.
Determining what is an adequate provision can be a difficult task as the Court will consider the relevant circumstances not at the time the will was made but at the time of the hearing.
To sum up, the brief answer to the question posed above is that you cannot prevent a claim being made on your estate. However, you can minimise the chances of a successful challenge to your will.
For advice from an experienced lawyer, phone Dominic Wilson on 8268 4000 particularly:
- if you think you have not been looked after properly in a will;
- if you want to make a will that minimizes the chance that it will be challenged successfully; or
- if you are an executor or beneficiary of a will and want to defend the will.