Off the List - Leaving People out of Wills & Left off the List - Estate/Family Provision Claims
Off the list: leaving people out of Wills
There may be a reason to entirely leave family members/ eligible people out of a Will. You may have already provided for them (so, further provision may be unfair to others), or matters of waste (including ‘lifestyle’ choices like drug or gambling issues), or an estranged child of many years who resisted attempts at reconciliation.
You may consider preparing a Statement (to be kept with the Will) detailing why you made a particular decision about your estate – including acknowledging any health and financial matters of the parties (which a court would consider), or other relevant factors. A written statement could be evidence for a court in a dispute – after you have passed (and cannot explain your intentions further).
After making a Will: Your Will document is confidential and should be safely stored – in a fireproof and waterproof container at home, or in a secure storage facility (with professionals – ensure your Executor or trusted family member knows where it is stored).
Finally, no one is entitled to know the Will terms – until after your Death – and then only specific people may request to be provided with a copy.
No Will, so what?
Your assets may become subject to the rules of intestacy, and require an application to a Court to appoint an administrator to manage and distribute your Estate.
This can be a little slower, more of a burden on family, including navigating disputes if your Estate is more complicated, and your Estate may be distributed in ways other than would be your preference.
We recommend you review your Will provisions periodically (including after significant ‘life events’) to ensure it considers your assets, financial interests and personal connections or relationships.
Our friendly Wills team are available to help guide you through the process of preparing a Will and can discuss your specific requirements in greater detail.
NOTICE: This article is accurate as at the time of publication and does not constitute legal advice.
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‘left off the list’ – estate/family provision claims
We understand not all families are ‘Brady Bunch’ close.
A successful claim to contest a Will may result in a fairer distribution of assets from an Estate, or protect vulnerable family members. However, it can be an emotional process, family relationships can deteriorate and can be costly (both in terms of time/delay and money).
Contesting a Will is a complex legal requiring careful consideration and ‘legal standing’ to bring a claim to contest a Will must be commenced within 12 months of death (although there may be exceptions).
Each State’s legislation is slightly varied, however in NSW, only an “eligible person” (in section 57 of the Succession Act 2006 (NSW)) can commence an action on an Estate. This includes a spouse, de facto, child or grandchild, and sometimes a non-related person (kinds of dependent or close personal relationships).
In NSW, seeking adequate provision from a deceased’s estate (sometimes called a family provision claim) may be common - many are settled out of court, often through mediation.
If a family provision dispute is entered into formally, then a Court will consider whether eligible person’s maintenance, education or advancement in life can be properly provided for (not necessarily what you may think ‘fair’), and work through a list of matters they consider in Section 60(2) of the Succession Act. There is a specific criteria (including deadlines) to satisfy – to determine whether there are circumstances to file a family provision claim, and issues of may also need to consider was there capacity, undue influence or adequate provision.
There may be drawbacks to contesting a Will (even if legitimately made), with potential risks and consequences, including [often permanent] damage to relationships, disputes can be expensive and reduce the Estate’s assets – with litigation potentially exceeding the value of the assets in dispute, or delays in resolution – so distribution is stalled.
Contesting a Will also risks exposing private concerns in a public record, may attract unwanted attention and focussing on (sometimes ancient) family history. Added to the grief of losing a loved one, proceedings are likely to bring friction and may be draining.
We recommend you review your Will provisions periodically (including after significant ‘life events’) to ensure it considers your assets, financial interests and personal connections or relationships.
Our friendly Wills team are available to help guide you through the process of preparing a Will and can discuss your specific requirements in greater detail.
NOTICE: This article is accurate as at the time of publication and does not constitute legal advice.
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Assets Notional Estate Claims (NSW)
People (in NSW only) can also make notional estate claims – making an application to court to have assets returned to a deceased estate, where those assets were given by the deceased to other people up to three years before their death.
A court must be satisfied the gift was given with the intention to circumvent a family provision order by giving away their assets prior to their death.
We recommend you review your Will provisions periodically (including after significant ‘life events’) to ensure it considers your assets, financial interests and personal connections or relationships.
Our friendly Wills team are available to help guide you through the process of preparing a Will and can discuss your specific requirements in greater detail.
NOTICE: This article is accurate as at the time of publication and does not constitute legal advice.
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What OTHER DOCUMENTS CAN HELP YOU MANAGE YOUR AFFAIRS?
Documents to assist when you are incapacitated
You may consider appointing someone to take care of your legal decisions (in the event of an accident or illness) or to manage financial affairs and care decisions according to your preferences if you cannot do this yourself (either short term or permanent incapacitation). These personal appointment documents only have power and effect while you are alive.
Making the process easier
While Estate planning and laws can sometimes be complicated, a discussion with our friendly team can make sure your Will and support documents are legally valid, reflects your intentions and sets out your wishes (plus manages complexities or risks of your Estate and personal affairs).
Our team can help navigate complexities of estate matters and assist you every step of the way.
How APJ Law can streamline the Estate planning process:
· We review your assets and discuss matters relating to your Estate
· Tailor advice to your needs and specific circumstances
· Prepare draft documents to review and discuss
· Finalise the terms of your Will, sign and provide copies
· Provide (free) secure storage of original documents.
We recommend you review your provisions periodically (including after significant ‘life events’) to ensure it considers your assets, financial interests and personal connections or relationships.
Our friendly Wills team are available to help guide you through the process of discussing your estate planning, and can discuss your specific requirements in greater detail.
NOTICE: This article is accurate as at the time of publication and does not constitute legal advice.