A person preparing a Will is sometimes concerned about possible challenges to the estate by disgruntled children or other family members, writes TGB's Tom Mead.
A person preparing a Will is sometimes concerned about possible challenges to the estate by disgruntled children or other family members, writes TGB’s Tom Mead.
The starting point when coming to make your Will is that the law recognises that a person making a Will (known as “the testator”) has complete freedom to leave their assets to whomever they choose. In South Australia the main “fetter” on this complete freedom is found in the Inheritance (Family Provision) Act 1972. This Act provides that certain family members of the deceased person (defined in Section 6 of the Act) are entitled to claim the benefit of the Act where, by reason of the provisions made in the deceased’s Will, that person is left without adequate provision for his proper maintenance, education or advancement in life.
If such an application is made the Court has a discretion to order such provision as the Court thinks fit to be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled.
The public policy underlying this Act is that a wealthy testator should not be permitted to make a bequest of his entire estate to, for example, the Home for Abandoned Cats, thereby leaving his widow and children destitute. In that example, the Court would have no hesitation in making an order to effectively thwart the deceased’s intentions as contained in his Will to ensure that the deceased’s widow and children are properly provided for. The outcome of many other cases is not as easy to predict; life is not usually that simple.
Many cases require a very delicate balancing act on the part of the Judge to, on the one hand, strive to uphold, where possible, the deceased’s intentions, whilst on the other hand, ensuring that family members are properly provided for out of the deceased’s estate, all whilst taking into account what can sometimes be very complex situations involving complicated living arrangements; perhaps as well as the deceased being survived by a widow, he may also be survived by one or even two ex-spouses or partners, as well as children from a number of different relationships. It is usually the case that each potential claimant will be in quite different financial positions, and have varying “moral” claims upon the estate of the deceased.
Another important consideration for an executor faced with a claim under this Act is that, under Section 9(8) of the Act, the Court may make such order as to the costs of any proceedings under the Act as the Court considers just. It is not unusual for the Court to order that the legal costs of all parties be paid out of the estate. If the case has run all the way to a trial in the Supreme Court, such costs can be considerable. There is a very real risk that a significant proportion of the estate will be “eaten up” by legal costs.
For this reason it is strongly recommended that anybody facing such a claim, or considering making such a claim, obtain legal advice at an early stage. By talking it over with a lawyer who practices in this field of the law, and obtaining some advice, it may well be that thousands of dollars in legal fees could be saved.
For advice about your estate dispute or Will issue, contact Tom at TGB’s Mt Barker or Adelaide offices. To get started on your Will now, click here.
On August 1, 2017, the Relationships Register commenced in South Australia, giving greater legal recognition to LGBTQI and de facto relationships. To find out how the Register impacts your will click here.