Estate disputes are surprisingly common in Australia. Laws across different jurisdictions allow eligible individuals to challenge a deceased’s Will if they believe they haven’t been adequately provided for. A successful claim can result in the Will being adjusted in favour of the claimant. However, you can take steps to help protect your estate from family provision claims and ensure your final wishes are respected.
What Are Family Provision Claims and Who Can Make One?
A family provision claim (or testator’s family maintenance claim) is a legal application by an eligible person seeking a share, or larger share, of a deceased person’s estate. The claimant argues that the Will failed to make adequate provision for their proper maintenance and support.
Eligibility criteria vary across Australia, so it’s important to consider the legislation in your jurisdiction. Typically, close family members such as a spouse, de facto partner, and biological or adopted children are eligible. In some jurisdictions, stepchildren, former spouses, and certain financially dependent relatives may also qualify.
Reasons Estate Disputes Arise
Understanding why estate disputes occur can help reduce the risk of a claim.
Family dynamics often become more complicated after a death. Emotional stress may intensify strained relationships. Blended families or estranged relatives can increase the likelihood of conflict over the Will.
Disputes also arise when individuals feel the distribution of assets is unfair. For example, a child who provided care during a parent’s final years may feel overlooked if the Will doesn’t reflect that effort. They may have sacrificed income or personal time, and the Will might not acknowledge that.
Outdated Wills can also lead to conflict, especially if they don’t reflect life changes like marriage, divorce, or new family members. Ambiguous language or unclear terms can confuse beneficiaries and trigger disputes.
Steps to Help Minimise Family Provision Claims
1. Prepare an Effective Will
Preparing your own Will carries risks. A clearly written Will is your best defence against a family provision claim. It should reflect your wishes and consider your financial and personal circumstances, family dynamics, and any potential sources of conflict.
2. Consider Potential Claimants
While you can distribute your assets as you choose, acknowledging the needs of eligible individuals may reduce the risk of a claim. Providing some level of provision can show you considered their needs, even if the share is smaller than expected.
3. Review Your Will Regularly
Review your Will after major life changes such as marriage, divorce, a new child, or the acquisition of major assets. Keeping your Will up to date ensures it reflects your current situation.
4. Check Your Superannuation
Your superannuation usually doesn’t form part of your estate. The super fund’s trustee decides who receives the benefit unless you have a binding death benefit nomination in place. Regularly review your super to ensure you’ve nominated your preferred beneficiaries. Consider financial advice to understand any tax implications for those beneficiaries.
5. Check Property Ownership
How you hold property with co-owners can affect your estate. Joint tenancy means the surviving owner automatically inherits the deceased’s share. With tenants in common, each owner holds a separate share, which can be left to someone in a Will. Make sure your ownership structure supports your estate planning goals.
6. Trusts
Trusts can be used to protect assets, provide for children or vulnerable individuals, and assist with tax planning. They are legal structures that hold assets separately from your personal estate. Since trusts involve complex legal and tax considerations, professional advice is essential when setting one up.
7. Communicate with Your Family
Having open discussions about your estate plan can help set expectations and reduce misunderstandings. If your family understands your reasoning, they may be less likely to dispute your wishes.
Conclusion
Ignoring the risk of a family provision claim could leave your estate open to legal disputes. While you can’t completely prevent a claim, taking proactive steps can help minimise the risk. Professional advice tailored to your situation will help protect your estate and ensure your wishes are respected.
This information is general only. We strongly recommend speaking with a qualified professional when preparing your Will and planning your estate.
For personalised help, please contact our office at (02) 9466 5189 or email [email protected].