A Will can deal with a person’s estate in any way that that person sees fit, including “writing out” a particular person as a result of estrangement or otherwise . Such Wills may well be upheld if no claim is made on the estate of the deceased person by some aggrieved person. But where somebody feels inadequate provision has been made for them and they fit those certain categories of people which legislation dictates should be considered by Willmakers, then they may be entitled to bring what is known as a Family Provision Claim under the Succession Act.
What can you do to prevent this? Depending on the nature of the “writing out” sometimes quite a lot; but sometimes, not much at all. The nature of an entitlement to claim is first of all a particular connection to the Willmaker (these include spouses, former spouses, children and in some cases grandchildren or people who have been members of the Willmaker’s household).
When such a claim is made the Court is required to consider whether or not, in all the circumstances at the time the matter is heard, adequate provision has been made. Parties often seek to arrange their affairs and estate planning to prevent such a claim and sometimes that is possible given sufficient time before death and creative uses of:
- insurance proceeds, and
- property ownership.
Another possibility for people entering into or already in later life relationships is to make a Financial Agreement under the Family Law Act – commonly known as “Binding Financial Agreements” (BFAs). Such agreements, if upheld, can deal with the parties’ rights on the breakdown of that relationship, including, but not specifically directed at, death. This can be a useful tool, particularly in circumstances where both parties’ affairs are reasonably settled, and they have made adequate provision for each other’s needs, even though, under each party’s Will, most if not all of their estate goes to their previous family members rather than to their new spouse.
This is a tricky area, and such agreements have for some time been difficult to have enforced by the Family Court and for that reason many Family Law practitioners do not agree to prepare them. However, they are worth consideration in Estate Planning provided they are not entered into purely from an Estate Planning perspective. It is not possible to provide a precise profile of parties for whom a BFA may be appropriate, other than to point out that they will almost never be appropriate for younger people, first marriages, or where there is a possibility of further children and joint acquisition of assets.
However, comprehensive estate planning will generally include consideration of all appropriate measures for the best outcome, including whether or not a BFA may be a possibility. While taking some positive steps and making certain arrangements might assist in defeating a family provision claim, it is never possible to guarantee such an outcome.
Please do not hesitate to contact any member of the Estate Planning team to review your affairs with a view to protecting and arranging your family interests in the best possible way.