A person can draft a Will however they please – this is called testamentary freedom. Unfortunately, in some families, children and parents drift apart, so when the parents go to exercise their testamentary freedom when preparing their Wills, this can result in the child’s exclusion in the Will.
Most people know that the clauses of a Will can be challenged, and there is a commonly held belief that there is a number of things that a Will maker(also known as a testator) can do to prevent any disappointed beneficiaries from making such a challenge.
This article will discuss these issues and the options for testators, who find themselves in these difficult situations.
Family Provision Applications:
Should a child be excluded from their parent’s Will entirely or simply receives less than they expected (and they think that they deserve more), they can make an application to the Court for further or better provision from a testator’s estate after the testator has died.
This is called a family provision application and it can be a costly and protracted process, but it can result in a Court essentially rewriting the terms of someone’s Will. However, it should be said that a Court does not lightly consider altering a testator’s testamentary freedom.
Preventing a Family Provision Application:
As alluded to above, many people believe that they can do things to prevent a family provision application from being made. This usually ranges from adding specific wording to the Will, leaving that child a small provision, or even adding a statutory declaration to the Will explaining the decision to exclude. However, none of these options can definitively stop an eligible beneficiary from making a family provision claim because they have a right to make such an application at law.
Nevertheless, in Queensland a testator can consider taking steps with respect to succession planning to try to limit such a claim as much as possible.
It is possible for a testator to limit an eligible beneficiary’s family provision claim through some of the examples we listed above, but they can also do what is called ‘Will substitutes’.Will substitutes allow testators to transfer ownership of property that would otherwise comprise their estate to the individuals that they want to inherit, and to do so without breaching Queensland’s family provision laws. Where property is subject to a Will substitute, the testator’s ownership of that property transfers to another person either shorty before or upon the testator’s death. This means that this property will not form part of the testator’s estate, effectively reducing its size. Since family provision claims can only be brought against a testator’s estate, an eligible beneficiary cannot use one to try to inherit any property that the testator has disposed of by way of Will substitutes. Testators can reduce the size of their estates through use of the following Will substitutes:
- joint tenancy;
- joint bank account;
- life insurance policy;
- donationes mortis causa; and
- mutual will.
- A person can exclude an eligible beneficiary (including a child) from their Will, but this does not stop the eligible beneficiary from trying to inherit.
- Even when excluded from the Will, an eligible beneficiary is entitled to try to inherit from the testator’s estate by making a family provision claim.
- A testator can take steps to limit an eligible beneficiary’s family provision claim by using various methods, includingWill substitutes to dispose of property that would otherwise comprise their estate.
- There are differenttypes of Will substitutes through which a testator’s property can devolve.
Our team of lawyers provide clear and timely advice and services on all areas of Wills and Estates law Australia-wide. Given that the legislative requirements for the construction and content of Wills, their execution, probate and administration and more changes from jurisdiction to jurisdiction, it is highly beneficial to engage legal experts who are well-versed in these rules and regulations across all areas of Australia.
Contact one of our offices today to discuss any legal issues you may have from preparing Wills to challenging them.
By Steven Hodgson & Bernadette McShane