“Where there’s a Will, there are 500 relatives.”
In making a Will, it can be just as challenging to decide who to exclude from your estate as it is to decide who is to benefit from it. People often think ‘it’s my Will, so I get the final say’. However, Australia laws prevents Will-makers, also called Testators, from completely excluding certain people such as family members.
Restrictions on Freedom of Testation
In Australia, the ‘Freedom of Testation’ means that a person can distribute their assets in their Will any way they choose. Following this, every State and Territory has rules in place to restrict this freedom relating to provisions for certain family members. For example, in Victoria, a person excluded from a Will who wants to claim a share of an estate must make a court application, known as a Family Provisions claim, and show that the testator had an obligation to provide for that person but failed to do so. Reasons that a testator may exclude a family member could be due to:
- A former relationship or relationship breakdown.
- Previous significant financial support already given to the person; or
- Fear that they may waste the inheritance shared with them.
Even if your reasons for excluding a family member are valid, provided the applicant is eligible to make a claim, the courts will consider it. Children and spouses of the testator are automatically deemed to be eligible to contest an estate.
How is a claim of an estate made?
It is complex and time-consuming to challenge a Will and claim a share of an estate. The court considers several factors when deciding whether to grant the excluded person their share. Across the States and Territories, the applicant must show that they were not left without proper maintenance, education, and advancement of life. For example, if a family member was financially dependent on you for many years but were not left anything from your Will, the court may decide that they have been unfairly excluded. In this event, the court can override the terms of the Will to redistribute the assets.
So how can I prevent a family provision claim?
Before writing your Will, consider the possibility of a claim being made for a share of your estate. If you believe someone may challenge your Will, you can write a written statement that is included in your Will. In this statement, you can provide details of the support you have already given to the claimant, and the reasons for their exclusion from the estate.
If you are interested in writing your Will and have questions, Wealthsource can help you. Reach out to find out how we can assist in making your Will.