Is my Will binding in all circumstances? 19 Jul 2013
Many people do not realise that a Will, even if signed correctly, can still be challenged after a person dies.
It is important, therefore, to give careful consideration as to how to distribute your property on death, to limit the risk of a bitter (and potentially expensive) dispute between family members or loved ones after you die.
Who do I need to provide for in my Will?
Under the Family Protection Act you owe a duty to provide “adequate provision” for the proper maintenance and support of your:
- Spouse, civil union partner or de facto partner (this duty is paramount).
- Your children;
In some circumstances, you may also owe a duty to:
- your grandchildren (especially if their parents are deceased or if their parent is unable to provide for them),
- your stepchildren (if you were maintaining them or were eligible to maintain them immediately prior to your death) or
- your parents (if you had been maintaining them immediately prior to your death or you have no surviving spouse/partner or children).
What is adequate provision?
Each case depends on its own facts. The Court looks at a range of factors including:
- The size of your estate (the property you own/have an interest in);
- The age of the person(s) claiming;
- The financial need of the person(s) claiming;
- The closeness of the relationship;
- Whether the person(s) claiming has already been provided for during his/her lifetime;
- Whether there are other competing claims;
- Your reasons for why you have structured your Will as you have.
For example, the amount that you will need to provide for your young children differs to that of adult children. Your duty to provide for children who have regularly assisted you in your senior years may differ to a child who you have been estranged from for the last 30 years.
Where you have a duty to provide for more than 1 person, thought will need to be given as to how you can provide for them all.
What can the Court do if I have not made adequate provision?
The Court can adjust what provision is made for the person claiming under your Will. If the Court does this, this will mean that the share of others under your Will will be reduced.
Will the Court always make changes?
No, not necessarily. The Courts recognise a person’s right to distribute their assets as they see fit. They will only intervene to the extent necessary to provide the person claiming with adequate provision, taking into account the factors set out above.
What about my spouse or partner? Are there any other ways they can claim against my property?
On your death, your spouse/partner is entitled to choose to either:
- Take what is provided for them in your Will (if anything); or
- Choose to make an application under the Property (Relationships) Act for division. If this is done, it is presumed that all “relationship property”, which includes items such as the family home, family chattels and all property acquired by either spouse/partner after the commencement of your relationship, will be shared equally.
If, in your Will, you give your spouse/partner less than half of what they would be entitled to under the Property (Relationships) Act, there is a significant risk that they will choose to make a claim under that Act, rather than elect to take under your Will.
To limit the risk, you and your partner/spouse would need to enter into a Contracting Out Agreement limiting your partner/spouse’s right to claim half your relationship property on death.
Are there any other ways my will can be attacked?
Your Will could also be attacked if you made a promise during your lifetime to provide for someone in your Will who carried out services or work for you. The Court could declare that that person has a right to be provided for from your estate.
Services can include not only things done for you during your lifetime, but also companionship, affection and emotional support (if it exceeds what would be normally expected of that person).
The amount of payment will not necessarily be what you promised them. The Court will consider:
- The circumstances in which the promise was made, the services were provided or the work was performed;
- The value of the services or work;
- The value of the promise;
- The size of your property; and
- The nature and amounts of other competing claims.
What can I do to prevent claims against my estate?
The most important thing you can do is to discuss your wishes, your personal circumstances and your property with your lawyer at the time you are making your Will. This is especially important if you have children from a previous relationship to your current one or if you do not want to equally provide for your children.
Other things you can do include:
- Keeping written notes of why you have made your Will as you have (especially if you suspect that there may be future issues). These notes often sit alongside the original of your Will and will assist the Court if a claim is ever made.
- If your personal circumstances change, then consider reviewing your Will (e.g. if you have children, or if you marry/enter a de facto relationship, separation or divorce). Marriage automatically ends a Will, unless the Will was made in contemplation of your marriage. Divorce automatically ends any provision for your spouse/partner under the Will unless the Will states that the provision will continue on divorce.
- Talk to your solicitor about protecting separate assets of yours which you do not want your spouse/partner to share in. A contracting out agreement (also known as a prenuptial agreement) might be appropriate as noted above.
- Be careful about making promises to people to provide for them in your will.
Should you need any assistance with this, or with any other matter, please contact Paul Cowey at Parry Field Lawyers (348-8480).