Family relationships can be complicated. You may not have a positive relationship with your immediate family, you may have become estranged from particular family members, or you may have a positive relationship with a family member but have already given them substantial gifts throughout your lifetime.
There are numerous reasons why you may want to exclude a particular family member from being a beneficiary under your Will.
While you have the discretion to choose what happens to your estate after you pass, it is crucial you take the proper steps to ensure your will is difficult to contest and a claim will not be successful against your estate.
A disgruntled beneficiary or family member may bring a family provisions claim on your estate if they believe they have not been given adequate provision.
When a claim is brought the Court is not concerned with whether all beneficiaries of a Will were provided with equal shares. Rather the Court will determine whether an adequate provision was made for the application for their maintenance, education, and advancement in life.
If successful, the applicant will become a beneficiary or the amount they received under the Will, will be adjusted.
There is a small pool of people who are eligible to bring a family provision claim against your estate, these are:
In the case of Georgopoulos v Tsiokanis & Anor (NSWSC) the deceased had three children. The deceased had a close relationship with two of the children and appointed them executors of his Will, the other child was estranged.
The deceased only provided $100 to the estranged child and included 17 paragraphs in their Will outlining why they did not want the child to receive anything further from his estate.
The estranged child brought a family provisions claim against the estate and sought an adjustment of the provisions.
The Court analysed the relationship between the two children appointed as executors and the deceased and concluded their relationship was stable, close, and loving. In addition, the Court found the executors played a crucial role in caring for the deceased during the time leading up to his passing.
The Court then considered the statements made by the deceased in his Will regarding his relationship with the applicant.
The Court found the deceased was justified in only awarding the applicant with a nominal share in his estate and that he was entitled to give priority to the interest of the children with whom he had a close relationship with.
This case demonstrates precise Will drafting is crucial in protecting your Estate. If the deceased had not included reasoning as to why his son was excluded, the son may have been successful in bringing a claim on the estate.
There is no way to stop a claim being brought against your estate by a disgruntled beneficiary or family member.
However, we can take steps to make your Will stronger and more difficult to contest, to ensure your estate is distributed in accordance with your wishes.
If you are looking to prepare or update your Will and are concerned of a claim being brought against your estate, please reach out to us. We can help!
