by Katrina Brown | Jun 14, 2020 | Estate Administration and Litigation, Nautilus Law, Succession Law
A Will is one of the most important legal documents you will make and must be tailored in accordance with your individual needs. It sets out your wishes for the distribution of your estate and provides directions as to who is appointed as your executor and how they should manage your estate.
The failure to execute a Will before your death will mean that you die ‘intestate’, leaving your assets to be distributed in accordance with legislative provisions (in Queensland, this is pursuant to the Succession Act 1981 (QLD) (the Act) – other States have similar legislation), which may not be in accordance with your wishes.
Further, a failure to seek professional legal advice to prepare a Will, attempting to draft your own Will, or neglecting to make sufficient provision for your spouse, descendants and dependants may result in a Family Provision Claim against your estate.
What is a Family Provision Claim?
Family Provision Claims are made under Part IV of the Act and are the most common type of challenge to a Will. The Act provides that whether a person dies testate (having a Will) or intestate (without a Will), the court may, in its discretion, apply such provision as the court thinks fit having regard to the status of the individual making the claim and whether they qualify as a dependant on the deceased.
Who can make a Family Provision Application?
A deceased person’s spouse, child or dependant is entitled to bring a Family Provision Application seeking proper support and maintenance from the estate of the deceased. Each potential claimant will be considered in detail below.
Spouse:
At law, a person’s spouse is entitled to a distribution from the estate if they are the husband, wife, de-facto partner or a registered partner of the deceased.
Children:
The definition of child under the Act is broad. Children who may bring a Family Provision Claim include not only the deceased’s natural or legitimate children, but also step-children and adopted children. Foster children may bring a claim if they can establish that they were wholly or partially dependent on the deceased and were a member of the deceased’s household.
Dependant:
A claimant may also fall within the category of a Dependant, which is defined as “any person who was wholly or substantially maintained or supported … by that deceased person at the time of the person’s death being:
- a parent of that deceased person; or
- the parent of a surviving child under the age of 18 years of that deceased person; or
- a person under the age of 18 years.”
Accordingly, a dependant may be a parent of the deceasd person.
So – if a Family Provision Claim can be made in any instance, what’s the point in writing a Will?
In the event of a Family Provision Claim, the Will is one of the primary documents upon which a court will rely, as this document sets out the testamentary intentions of the deceased.
While there is no concrete method of preventing a Family Provision Claim being lodged – there are various methods by which the chances of a claim being lodged, or of such a claim being successful, can be decreased.
When a court considers a Family Provision Claim, the deceased’s views will be considered. However, there is no guarantee that the court will uphold the wishes contained within the Will if the claimant can demonstrate the need for proper support or maintenance. It is, therefore, paramount to consider every possibility which may arise, and to draft a Will that considers all potential claimants and provides security and protection to ensure your estate is distributed as you intend.
If you are excluding any of the potential claimants from receiving a distribution under the Will, or effecting a distribution that is less than what may be considered by a court to be “proper entitlement”, it is important that you record the reasons for such exclusion or reduction with either a clause included in the Will or alternatively executing a signed statement to be kept with the Will. There are various supplementary documents which can be prepared by your solicitor setting out the reasons a lesser provision was made for potential claimaints.
If you would like to speak to our estate planning team about drawing a Will or potential Family Provision Claims, please contact our office on 07 5574 3560 or via email at info@nautiluslaw.com.au.
by Katrina Brown | Jan 16, 2017 | Powers of Attorney and Estate Planning, Succession Law, Wills
You drafted a Will years ago – it’s pretty basic, but it gives everything to your spouse, or, if your spouse doesn’t survive, then everything goes to your children. So, if the content of the Will applies, what is the point of doing a new Will that sets out the same wishes?
Many people see the updating of a Will as an unnecessary and costly exercise, particularly when the new Will contains the same directions as the prior Will.
Although we certainly understand the frustration with the process, there are three important reasons to ensure your Will is reviewed and updated regularly.
Firstly – a regular review of your Will is critical
There have been recent cases in Queensland that indicate that if a challenge is made against the Estate of a deceased person, and the Estate is being administered by a Will that was not recently made or reviewed, the Courts often question whether the wishes of the deceased at their date of death were the same as those contained in the Will.
There is good reason for this. We regularly hear “I’ve been meaning to update my Will for months now, especially since this happened” – life is busy, and updating a Will falls a long way down the to-do list for most people.
However, it is important to make time for the review process – attending on your solicitor to review the Will, make any alterations, or confirm your wishes can clarify your intentions for the administration of your Estate and potentially prevent an Estate challenge. There is no defined review period, however we recommend reviewing your documents with your solicitor at least every three years.
Secondly – legislation and case law changes regularly – your documents need to change with it
Legislation and Case Law in each State is constantly evolving, meaning that the way your Will is interpreted or effected may change over time.
It is important to review, and confirm or vary, your Estate planning documents with your solicitor regularly to ensure that there are no material changes to your Estate plan that result from changes in law.
Finally – has your Will been voided or revoked?
While a regular review of your Estate planning documents is important, there are certain circumstances which will void your Will – therefore, review is critical should any such occasion occur.
Marriage, for example, will revoke a Will. Unless your Will is made in contemplation of your marriage to your partner, the act of marrying will invalidate the Will.
Similarly, divorce or annulment will also revoke your Will (unless a contrary intention is specifically indicated).
It is also important to review your Will as the circumstances of yourself, your executors or your beneficiaries change – if you, your executors or your beneficiaries become subject to bankruptcy or family law proceedings, it is important to review your Estate plan to ensure that it is still appropriate and, where necessary, that appropriate protective measures are set in place.
If you need to review your Estate plan, we welcome you to contact our Estate Planning Team on 07 5574 3560 or via email.
by Katrina Brown | Mar 7, 2016 | Estate Administration and Litigation, Estate Litigation, Powers of Attorney and Estate Planning, Succession Law, Wills
“If I leave someone $1 under my Will, then they can’t make a claim against my Estate”. This is a common misconception that is often encountered in the estate planning process for clients who wish to take all possible steps to ensure that a claim won’t be made against their deceased estate.
The Succession Act 1981 (Qld) provides, at Part 4, that the Court may consider an application made by a spouse, child (including stepchild or adopted child) or dependent where the deceased has not made adequate provision from the Estate for the claimant. The Court will consider factors such as:-
- The extent to which the claimant was being maintained and/or supported by the deceased;
- The need for the continuance of such maintenance and/or support; and
- The circumstances of the claimant and the Estate.
It is therefore not sufficient to leave a nominal gift for a potential beneficiary under your Will. The Court’s consideration is not based on whether you have made any provision for the beneficiary, but rather that you have made adequate provision for the beneficiary.
If you are anticipating an Estate claim following your death, you should advise your lawyer of your concerns so that all necessary steps can be undertaken in the preparation of your Will and estate planning documents. It may be appropriate to leave supporting estate planning documents setting out the circumstances under which you made your Will, and why you made provision for your beneficiaries (including, where appropriate, excluding beneficiaries).
The unfortunate reality is that there is no fail-safe method to prevent a claim against your Estate. If you have concerns about a claim against your Estate, we strongly recommend discussing your concerns with our Estate Planning team to make sure that all appropriate steps are undertaken to ensure that your Estate Planning instruments are appropriately drafted to address and possibly pre-empt a potential claim.
Our Estate Planning team can be contacted on 07 5574 3560 or via email to caitlin@nautiluslaw.com.au.
by Katrina Brown | Feb 3, 2013 | Estate Administration and Litigation, Succession Law
Estate challenges are becoming more common than ever, with all members of the family seeking a share of a deceased family member’s estate. Wives, children, stepchildren, siblings, de facto partners, ex-wives are fighting viciously for what they feel they deserve. Nautilus Law Group strives to provide peace of mind to our clients to avoid the financial and emotional costs of extensive litigation.
It’s my money – I’ll do what I want with it!
When discussing the obligations of provision with clients, the most common question we are asked is ‘why can’t I give my money to whoever I want?’ Freedom to dispose of property as you wish in your estate seems to be a fundamental right, and clients are often shocked when they become aware of the fact that there are strict limitations on this right.
The law must draw a fine line between ensuring that these rights remain upheld, and introducing limitations to protect those that need protection. It is a balancing act – ensuring there is proper provision for the support of people that require such support, and the freedom to deal with your property as you see fit.
Succession Act
In Queensland, the relevant legislation relating to the governance of this balance is the Succession Act 1981 (Qld). Section 41 of this Act provides as follows:
“41 Estate of deceased person liable for maintenance
(1) If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.”
In sum, this section provides that if a person dies and does not make adequate provision for the support and maintenance of one of the following classes of people:
· a spouse;
· a child; or
· a dependant;
then the court may order that further provision be made for the person who is a part of such class. This section applies regardless of whether you have drafted a Will and clearly outlined your intentions in relation to disposition of your assets.
What is a spouse?
A spouse is relatively easy to define, and encompasses someone who is a husband or wife, a de facto partner, or a ‘registered partner’.
A de facto relationship is established where two people are ‘living together as a couple on a genuine domestic basis’. The court takes into account a number of factors when determining whether a de facto relationship exists. These factors can include:
· the length of the relationship;
· whether there exists financial dependence or interdependence between the parties;
· whether the relationship is publicly known or is made public;
· how property is owned and used, and assets managed; and
· whether there is a mutual commitment to sharing a life together, including providing care and support to each other.
In order for a de facto partner to be considered the spouse of a deceased person at the time of the death, the person had to have been residing with the deceased on a ‘genuine domestic basis’ for at least 2 years continuously prior to the deceased’s death.
A registered partner is a member of a registered relationship, being a legally recognised relationship regardless of the sex of the parties.
What is a child?
For the purposes of the Succession Act, a child includes stepchildren and adopted children of the deceased.
What is a dependant?
Perhaps the most important to define is the concept of ‘dependant’. As per the Succession Act:
“dependant means, in relation to a deceased person, any person who was being wholly or substantially maintained or supported (otherwise than for full valuable consideration) by that deceased person at the time of the person’s death being—
(a) a parent of that deceased person; or
(b) the parent of a surviving child under the age of 18 years of that deceased person; or
(c) a person under the age of 18 years.”
This definition essentially means that any person who relied on the deceased person for support or maintenance, whether entirely or only partially, is entitled to make a claim for provision against the estate.
What does this mean?
The number of classes of people who may be eligible to make a claim against an estate makes it important to carefully consider who may be eligible to make such a claim, and whether they have been adequately provided for in the Will.
A common scenario
We have a number of clients who, for whatever reason, wish to leave a greater share of their estate to one of their children. In most cases, this is simply because one child has made sacrifices for the care of the Willmaker, while the other child has lead a relatively independent life. The greater share is not intended to demonstrate a greater love for one child, but simply to provide compensation for the sacrifices given by that child.
Simply dividing an estate this way is insufficient for the purposes of protection of assets within an estate. An unequal split between children will, in many circumstances, result in a challenge to the estate when it is being administered.
Whether a claim against an estate is valid or not, the estate is still required to respond to such challenge. Solicitors are retained in order to defend such action, and potentially take the matter to court if required. Such action incurs legal fees which can cause an estate to dwindle rapidly. Thousands of dollars can be spent responding to a claim against an estate, and this form of litigation can go on for years. In addition to the costs, estate litigation is emotionally draining on families and can often cause irreparable damage to relationships.
How can Nautilus help me?
Nautilus Law Group prefers to see your money go where you intend it to go. Nautilus would prefer to see your assets in your estate distributed to your family instead of lining the pockets of an estate lawyer.
Nautilus provides our clients with peace of mind – we work with our clients to establish strategies to avoid estate challenges. We aim to arrange disposition of your assets in a way that is in line with your wishes, while also mitigating the risks that may cause conflict between family members.
Nautilus strongly advocates the preventative approach to legal issues, doing our best where possible to prevent situations of conflict arising. If you have a complex family situation, we encourage you to speak to us to ensure that your assets within your estate are protected.
Please feel free to contact our office on (07) 5574 3560 for more information.
