Civil Law

By Tegan Larter

22.11.18

Plan ahead for when you’re dead or you’ll be rolling in your grave

You’ve lived a great life, achieved everything you’ve set out to achieve, and prepared a will leaving your estate exactly where you want it to go. So that’s it, right? You die and your loved ones get what you want them to get. In most cases, yes, your family are looked after from the distribution of your estate if that’s the way you want it. But what happens if you want to leave someone out of your will?

It’s not as uncommon as you may think. In this day and age, with blended families becoming the norm, family disputes and complicated estates are par for the course.

Let’s face facts, families fight and loved ones drift apart and ultimately you may want to exclude someone from your will. You hear about it in Hollywood too, Michael Jackson left his Father, Joe Jackson, out of his will because of their fraught relationship. Joe attempted to contest the will to no avail. The Godfather of Soul, James Brown, has also been in the news recently as the dispute over his $100 million estate has just ticked over 12 years. His wife at the time of his death has made a claim on his estate as his will hadn’t been updated prior to their marriage leaving her excluded as a beneficiary.

So, what is a Family Provision Claim?

A family provision claim is an application made to the Court by an eligible person under the Family Provision Act 1969 (“the Act”) to seek adequate provision from the Estate of a deceased person. It may be that they have been left out completely, or left a share of the Estate that they don’t consider adequate.

An eligible person is defined in the Act as:

  • A partner of the deceased person;
  • A person (other than a partner of the deceased person) who was in a domestic relationship with the deceased person for 2 or more years continuously at any time;
  • A child of the deceased person;
  • A stepchild of the deceased person (but only if that stepchild was maintained by the deceased person immediately before their death);
  • A grandchild of the deceased person (but only if that grandchild’s parents died before the deceased person or the grandchild was not maintained by their parents before the death of the deceased person);
  • A parent of the deceased person (but only if the parent was maintained by the deceased person or if the deceased person was not survived by any partner or children).

Any person who falls into those categories can apply to the Court under the Act. They need to prove their relationship to the Court and provide evidence on why they should be awarded provision from the deceased’s Estate. The Court will take into consideration, among other things, the deceased person’s intention (that is, the will of the deceased), any evidence that can be provided for the deceased’s intentions regarding the will and any evidence on their relationship with the applicant.

So how do you do it? How do you decide to leave someone out of your will and make it stick?

You cannot stop an eligible person making a family provision claim, but there are a few ways you can limit the damage and perhaps nip a claim in the bud if one is made on your estate. Preparation is key in this area of the law because once you are dead, that’s it, you no longer have a say and you’re not there to explain your reasons. It then becomes the Court’s job to figure them out and as we all know, more time in Court means $$$$$.

As a rule, if we have clients who intend on leaving a family member who qualifies as an eligible person out of their Estate, we will draft a comprehensive affidavit in support of this decision. This affidavit is completely executed, factual and non-emotional, and is stored with your original will in the event that it is ever needed in the future.

The affidavit will document:

  • That you sought legal advice on leaving the eligible person out of your will;
  • That you understand a family provision claim can be made;
  • Who the person is that you are excluding from your will;
  • The state of your relationship with the excluded person;
  • Your specific reasons of excluding that person; and
  • Any other factors that may be relevant to the distribution of your Estate.

Your own words will go a long way in supporting your original intentions and hopefully minimise legal costs and unrest in your family after you are gone. Don’t forget that failing to plan is planning to fail.

If you would like some advice on your current estate plan or would like to begin the process of preparing one, please get in contact with our office and our Estates team will get in contact with you.