For some, it is difficult to understand why an adult of full capacity cannot choose to whom they leave their Estate.
We hear often of stories of family disharmony, where there has been a falling out in the family and the relationship is estranged. However, having a falling out with a family member or fearing they will “waste away” any entitlement they receive, is not reason enough to choose not to provide for them.
The following people are potential claimants on your Estate and you should give consideration to leaving your Estate to the following people:-
- Husband or Wife
- Defacto partner
- Step-child / step-children
- Anyone who you are providing financial assistance to
If you are considering leaving a significant person out of your Will, it is important you understand the legislation which ultimately determine the decision. Upon your death, a potential beneficiary would have six (6) months from the date of your death to put your Executors on notice of their intention to make a claim against your Estate.
Estrangement alone does not defeat a family provision application. Indeed, if that estranged beneficiary demonstrates need, then the need may see the estranged beneficiary receive provision from the Estate.
Factors the Court will consider when considering a family provision application are:
- Financial situation;
- Size of your Estate;
- Competing claims;
- The standard of living of the claimant during the deceased’s lifetime;
- The extent of contact between the claimant and you;
- The manner in which the claimant conducts themselves during your lifetime;
- Your wishes and statements
When you instruct a solicitor to assist with your Estate planning or advise you on your Will, you should discuss with them your particular circumstances with respect to your family. If your family is affected by estrangement and you intend to exclude your estranged child from your will, you should consider whether that child will bring proceeding against your Estate and cause problems for your Executors.
We recommend you make an appointment with a member of our estate planning team to discuss your circumstances and we can give you specific advice with respect to your circumstances.