One of the most unseemly things that can occur after a loved one passes away is a family squabble about the terms of the deceased’s will.
While ‘blood is thicker than water’, money can make a mockery of familial ties if one or more beneficiaries feel they have not been adequately provided for in the will. A Family Provision Application (FPA) is the means by which an eligible person contests a will under Queensland’s Succession Act.
If you are thinking about making or updating a will and need expert guidance on how to minimise the possibility of conflict between family members after your death, call South Geldard Lawyers for an initial consultation.
Key things to think about when making a will
The first and simplest way to reduce the prospects of someone contesting your will once you pass is to draft the document so that adequate provision is made for anyone who is likely to be able to successfully contest its provisions. This will usually be a person’s spouse and children but can also be other beneficiaries. Eligibility to contest can vary between jurisdictions in Australia.
Adequate provision does not mean equal shares, even between siblings. The test of adequacy is based on what a ‘reasonable testator’ would do in the same circumstances, so that if one child has been primarily responsible for the care of an elderly parent or has helped build up their estate, for example, it may be considered reasonable that greater provision in the will is made for that child rather than his or her siblings.
Keeping assets out of the estate: One common way to ensure certain assets are not available to those who have standing to contest a will, is to establish how the asset will be dealt with during one’s lifetime.
In the case of superannuation or a life insurance entitlement, for instance, a person can make a Binding Death Benefit Nomination which ensures that the funds are paid to a specified nominee once the policy holder dies. The monies don’t become part of the person’s estate and so can’t be accessed by an aggrieved family member.
When a testator wishes to pass on a property asset to an intended beneficiary, they should ensure the property is jointly owned with that beneficiary. This is because under Australia’s property laws, when a joint tenant dies, ownership of the asset passes to the surviving joint tenant and does not become part of the deceased’s estate. This is a common occurrence for those who remarry and wish the asset to remain with the new partner, rather than the ex-partner.
In Queensland, this same concept of survivorship applies to joint bank accounts (though not in all states of Australia).
Gifting assets: Another way to ensure certain assets do not become part of an estate – and therefore vulnerable when a will is contested – is for an asset (or assets) to be gifted to a beneficiary during the testator’s lifetime. Expert and legal advice should be sought before taking this course, as gifting an asset during your lifetime can have tax and pension implications. Care should also be taken to ensure the Donor has capacity to make their decision to give the asset away and that no undue influence has been exerted upon them.
Speak with the experts
Many of the problems that arise when a will is contested can likely be avoided if the document is carefully drafted in the first place after receiving advice about adequate provision for potential claimants.
Discussing the making of your will with experienced wills and estates legal professionals such as South Geldard Lawyers can clarify all of these issues and assist you to create a will that reduces the chances of it being contested once you’ve passed. In other cases, you may need to update an existing will to reflect changing circumstances in the family.
Whatever your situation, contact our solicitors in Rockhampton today to discuss the making of a valid will.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.
