Will your last Will be your final word?

09-07-2018

Will your last will be your final word on who gets your property and possessions? The answer is “not necessarily”.  The validity of a will can be affected  by such things as a person’s mental state at the time they made the will . More commonly family and dependants contest a will because they believe the testator has not made adequate provision for them.  In Queensland this is called a family provision claim.  The Succession Act 1981 regulates wills and estates in Queensland.

Can I leave a $1 to a child so they can’t make a claim? No, that won’t work.

Who can apply? Their spouse (this includes defacto and same sex partner), children of the deceased including a stepchild or child born outside of marriage and a deceased’s dependant who is a parent of the deceased, a parent of a surviving child under 18 years of the deceased or a person under 18 years.

What does the court consider? The net value of the estate, the financial position, age, health and sex of the applicant, assistance and gifts made to the applicant by the deceased during their life and the nature of the relationship between the deceased and the applicant including the character and conduct of the applicant.

There are two things to note. Firstly that in making your will you cannot exclude an eligible person from making a family provision claim by leaving them a token amount.  However you can assist in resisting a claim by making a declaration at the time you make your will of your reasons for not providing for someone who could normally be expected to be provided for in your will, such as a wife, husband or child. Secondly there are strict time limits from the date of death for making a claim. The executor must be notified of an intention to apply within 6 months. If the executor distributes the estate after this time they are not liable to repay the distributed estate if there is a successful claim. The claim must be lodged with the court within 9 months of the date of death.

The court process for dealing with family provision claims requires parties to undertake alternate dispute resolution such as mediation before a claim will be heard by the court. As usual with litigation, cost are at the discretion of the court and a successful party will have some of their costs paid.  Generally if a person’s claim has any merit their costs will be paid by the estate.

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