Amonrat Chanta (‘Amy’) ran a chain of restaurants, ‘Chat Thai’. She had a son, Kulphat Laoyont (‘Pat’), and a daughter, Palisa Anderson. Amy had two wills: one executed in NSW in 2017, and another executed in Thailand in 2020. The NSW will provided for a fairly even split of Amy’s shares in the companies used …
Limiting Testamentary Freedom: Does Family Provision Go Too Far?
The Court has long respected testamentary freedom and allowed testators to disinherit close family members if they so desired, leaving those family members with no legal options to contest the will. However, testamentary freedom is no longer absolute and a person who has been unfairly left out of or insufficiently provided for in a will may challenge that will under the family provision regime.
So, You’re Bankrupt: Can You still Make a Family Provision Claim?
Bankruptcy will affect your ability to make a family provision claim. If you become bankrupt after commencing proceedings, your claim will be stayed. If you are successful, the property will go to creditors.
Who Decides What Happens to my Body After I Die?
You cannot “give” away your body under your will, and your control over your body after you die is limited. The executor of your estate will ordinarily have control over your body when you die.
Murderers Will be Disinherited: The Forfeiture Rule
The forfeiture rule prevents a person who has caused the death of a testator from receiving an inheritance under the testator’s will or from bringing an application for family provision against the testator’s estate, even where they meet the eligibility criteria.
How to Disinherit Your Children
Whether or not a parent should be entitled to disinherit their children is a controversial topic. Although the law does not place any positive obligation upon a parent to provide for their children, the family provision regime operates to prevent a testator from disinheriting those persons whom they have a moral obligation to provide for, thus, restricting the ability of a parent to disinherit their child.
Missing Persons & The Presumption of Death
Where a person disappears and has not been heard from for a period of 7 years by their friends, family or colleagues, they may be presumed dead. If the presumption of death applies, and the person has left property behind, the Court may distribute their estate according to their will or the rules of intestacy, and deal with any family provision claims accordingly.
Charitable Bequests & The Risk of Family Provision Claims
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.