When making your will it is important you consider, if you have any children (including step-children), spouses (including former and de facto) and dependents, how they are provided for under the terms of your will. The reason is these persons may be entitled to make a claim on your estate for family provision under the Queensland Succession Act 1981 (Qld).
If it is your intention to exclude a person that would otherwise be eligible under the Succession Act to make a family provision application, it is recommended you make a statement as to the reasons why that person is being excluded. After you have passed away a statement such as an affidavit may assist a Court as to the reasons why you did not provide for that person under the terms of your will. Remember you won’t be able to provide that evidence later when such an application is made on your estate.
Ultimately it will be for the Court to decide if you have made adequate provision for an eligible person but a statement can be persuasive evidence as to your reasoning. The Court has discretion to make decisions in deciding whether to grant relief to a family provision applicant and certain factors are taken into account when exercising that discretion.
In Queensland it is recommended that your statement be made by way of an affidavit. Generally it is recommended you don’t include such statements in your will as they may embarrass family members or be unnecessary if no family provision application is made on your estate. It is advised that you see a solicitor and obtain advice regarding considerations of family provision applications and assistance in drafting an affidavit if you intend on excluding an eligible person from your will.
At Greenhalgh Pickard Solicitors and Accountants we have experienced solicitors in the area of estates and estate litigation that can provide you with assistance in drafting your will and advise you of issues that you need to consider in order to avoid complications for your estate after you have passed away.
By Shane Ulyatt