A testator may leave their estate to whomever they wish, including to any charitable organisations. However, where an estate is left to a charity instead of family members, it is often contested under the family provision regime.
Family Provision Orders: Interstate & Overseas Property
It is not uncommon for a person to own real and personal property not just in the state they live in, but also in other states or even other countries. Where a deceased’s persons’ assets are spread across state borders, questions arise as to the appropriate jurisdiction to commence a family provision claim.
A Lawyer’s Duty to Advise on Potential Family Provision Claims
When preparing a will, a lawyer owes a duty of care to the testator to advise them on the possibility of a family provision claim. However, as Badenach v Calvert demonstrates, this duty does not impose any obligation upon the lawyer to advise the testator of the steps which can be taken to mitigate the possibility of a family provision claim.
Mediation in Family Provision
In NSW, under the Succession Act and pursuant to Practice Note SC Eq 7 – Family Provision, unless the court orders otherwise, all family provision claims must go through mediation before the matter can proceed to a final hearing.
Can Your Ex Contest Your Will?
IIn NSW, under s 57(1)(d) of the Succession Act, your Former Spouse (or De Facto Partner) may be Eligible to Contest your Will. However, your Ex will only be deemed an Eligible Person where there are Factors Warranting the making of the application. The case of Lodin v Lodin provides a useful discussion as to what will constitute factors which warrant the making of an application.
Preventing a Will Contest: Transferring Property Prior to Death
It is common for testators to transfer property or assets to their intended beneficiaries prior to their death, in an effort to avoid any potential challenges to their will. The logic being that an applicant will be unable to challenge the will where the estate has no real value. However, in NSW transferring your assets before your death will not necessarily prevent a family provision claim from being made against your estate and in particular circumstances the court may make a Notional Estate Order.
Are a Testator’s Moral Obligations Relevant?
Family Provision was traditionally seen as a means of giving effect to a testator’s moral obligations or duties to provide for their dependants and family members. While, this approach has been questioned, the relevance of moral obligations or duties to family provision claims was confirmed in Vigolo v Bostin.
The Two-Stage Approach to Family Provision Claims
Singer v Berghouse establishes the two-stage approach which the court should take in assessing a family provision claim. However, Singer v Berghouse was decided with regard to the Family Provisions Act 1982 (NSW) and its applicability to the current NSW Legislation, the Succession Act, has been questioned.
What Happens When There is No Will?
Where a deceased dies without a will the rules of intestacy will apply and the deceased’s closest relative will inherit their estate. This raises the question: Is it possible to contest the distribution of the estate where there is no will?
How Relevant Are the Deceased’s Testamentary Intentions?
The Court may have regard to any evidence of the deceased’s testamentary intentions when determining a family provision claim. However, the key question before the Court is whether adequate or proper provision has been made for the applicant. In this inquiry, evidence as to the deceased’s intentions will not be determinative.