“What about me?”: Wills, fairness and family provisions claims

Just a couple of months after Bob Hawke’s death, he was back in the news. This time, it was his will making headlines. Reports suggesting a “legal brawl brewing” between his daughter and widow fuelled water cooler talk all over Australia.

Was it fair that the former PM was leaving his children and step-child a measly $750,000 payout while second wife Blanche d’Alpuget was left $15 million plus? Would his reputedly disgruntled daughter really resort to contesting the will? Does fairness even matter when it comes to contesting a will?

Contesting a will in NSW

Contesting a will because you feel you haven’t been treated fairly involves making a family provision claim.

In NSW, a family provision claim is made by applying to the Supreme Court of New South Wales for a share, or a larger share, from the estate of a person who has died.

report on will making and contestation in Australia noted that contestation “arises from need, greed or entitlement” with evidence revealing there is a “cohort of financially independent adult children who successfully contest estate distributions.”

The report also revealed that while most wills provide for equal shares for children, family complexity, cultural considerations and complex assets can lead to an unequal allocation of assets.

If you’ve been left out of a will entirely or did not receive what you expected you should receive, you can make a family provision claim – provided you are an “eligible person”.

So, who is an eligible person? The definition includes:

  • the wife or husband of the deceased person
  • a person who was living in a de facto relationship with the deceased person
  • a child of the deceased person (including an adopted child)
  • a former wife or husband of the deceased person
  • a person who was, at any particular time, entirely or partly dependent on the deceased, and who is a grandchild of the deceased person or was at that particular time a member of the same household as the deceased
  • a person who was living in a close personal relationship with the ceased person at the time of their death.

How do courts decide these cases? Is it all about “fairness”?

Rather than deciding what’s “fair”, courts are looking at these matters from a slightly different angle. The courts can only make a family provision order where there has not been “adequate provision for the proper maintenance, education or advancement in life” of the person making the claim.

If you make a claim, the legislation contains a long list of factors which the court may consider in determining whether to make an order. These are extensive, and include:

  • the nature and duration of your relationship with the deceased person
  • the nature and extent of any obligations or responsibilities owed by the deceased person to you, to any other person who’s made an application and to any beneficiary of the deceased person’s estate
  • the nature and extent of the deceased person’s estate and any liabilities
  • your financial resources and those of the beneficiaries and any other person making a claim
  • the financial circumstances of any person you are cohabiting with
  • whether you (or any other applicant or beneficiaries) have a physical, intellectual or mental disability
  • your age
  • any contribution you made to the deceased person’s estate, their welfare or their family’s welfare
  • any evidence of statements made by the deceased person,
  • your character and conduct (and any other person’s) before and after the date of the death of the deceased person.

The onus of establishing that there has not been adequate provision for the proper maintenance, education or advancement in life rests with the person making the claim.

The court’s power to make an order is discretionary, and although the legislation and a long line of cases gives guidance, ultimately each case is judged on its own individual facts and circumstances, which are diverse and change from case to case.

Making a claim: is it worth it?

The articles circulating about Mr. Hawke’s will aired all the dirty laundry, recounting past and ongoing scandals, from drug addictions to divorce and even an embarrassing fracas at Brisbane Airport. The scenario is often repeated on a smaller scale, with researchers confirming will contests to be “problematic with economic, social and relationship costs.”

The incentives to make a claim, though, are also powerful. For most people, financial need can outweigh any potential downsides. There’s also the fact that contestation has a high rate of success – whether that’s through mediation or the courts.

If you do intend to make a claim, it’s important you get legal advice as soon as possible after the death of the person whose will you wish to contest. A family provision claim must be filed with the court within 12 months of the date of death.

The next chapter in the Hawke saga – the will – highlights common difficulties in modern Australian families, such as step-families. Just what is fair when it comes to dividing up assets? And is it worth resorting to the courts if you feel your share of an estate is inadequate?  Only time will answer these questions for Mr. Hawke’s family.

Liability limited by a scheme approved under Professional Standards Legislation. This post provides a general overview and should not to be relied upon as legal advice or as a substitute for legal advice or as giving rise to a solicitor / client relationship. If you want advice specific to your circumstances, please contact us to arrange an appointment.

If you feel you’ve been unfairly treated in a will, make an appointment to see one of our experienced estate lawyers today.

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