feedback

20 November 2012 Can I disinherit my wayward child from my Will?... You may be surprised!

By Angela Harvey, Partner and Phillip Briffa, Solicitor


In Brief

Who can make a claim against your estate? What needs to be established by the applicant? What will the court consider? These important questions along with proactive strategies to help protect your estate are covered by estate planning partner Angela Harvey and solicitor Phillip Briffa.


Who can make a claim?

Chapter 3 of the Succession Act 2006 (Act) empowers certain persons, to make a claim against your estate where adequate provision is not made for them under your will.
 
The Act empowers the following classes of people to make a family provision claim:

  1. wife or husband of deceased person,
  2. de facto partner of deceased person,
  3. child of the deceased person,
  4. former wife or husband of the deceased person,
  5. a person:
    1. who was, at any particular time, wholly or partly dependent on the deceased person, and
    2. who is a grandchild of the deceased person, or was a member of the household of which the deceased person was a member,
  6. a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.
What needs to be established by the applicant?

The applicant will need to establish that the provision made under the deceased's Will, if anything, was inadequate for the applicant's proper maintenance, education and advancement in life.

What will the Court consider?

In Singer v Berghouse the High Court ruled that a two-stage process is required to assess a claim for provision under family provision legislation.
 
Stage One
The first stage considers whether the provision made, if at all, was inadequate having regard to, amongst other things; the financial position of the applicant, the nature and size of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the strength of the applicant's claim when compared with other competing claims against the estate of the deceased.
 
Stage Two
The second stage is only considered if the Court forms the opinion at stage one that the provision was inadequate. The second stage requires the Court to decide what provision will be made out of the deceased’s estate for the applicant. This stage involves the exercise of discretion by the Court.
 
For example, there are circumstances where the Court will refuse to make an order (at stage 2) notwithstanding that the applicant was found to have been left without adequate provision for proper maintenance (at stage 1). Take for example the situation where there are no assets from which an order can reasonably be made or where making an order could disturb the testator's arrangements to pay creditors.

Time limit for claims

An applicant has 12 months from the date of death of the deceased to make a claim against the deceased's estate. The Court may grant an extension of time where a 'sufficient cause' is shown.

Be proactive - Strategies to help protect your estate

Having your Will drafted by a skilled lawyer trained in the area of Wills and Estates can help minimise the chances of a claim being made against your estate.  We have been seeing more and more family provision matters coming through our doors at Swaab, and in most cases, the Wills are almost always prepared by people themselves, without the assistance of a solicitor, using Will Kits or other basic documents.  No solicitor will be able to prevent a claim altogether (unless a specific Court ordered release is obtained before death), but there is a lot that we can do to minimise the risk, and to ensure that our clients understand the risks, having regard to their own personal circumstances.

Angela Harvey, Partner  |  Phone: +61 2 9233 5544  |  Email: axh@swaab.com.au

If you would like to republish this article, it is generally approved, but prior to doing so please contact the Marketing team at marketing@swaab.com.au

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

Back to publications
Association Memberships
Tristan Jepson Memorial Foundation
  • 2017 - Winner Lawyers Weekly 30 Under 30 Awards
  • 2017 - Finalist Lawyers Weekly Australian Law Awards
  • 2017 - Finalist Lawyers Weekly Women in Law Awards