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Protecting your Estate from Family Provision claims

Many people believe that when they make a Will, their wishes are set in stone. In New South Wales, that is not always the case because the law requires you to take care of your familial responsibilities and provide (make provision) for those who depend on you.
For instance, you would not think it fair if a person left their entire estate to the RSPCA instead of their 4 children who are all under five years old. Unsurprisingly, a court would require the children to be provided for from the Estate.

While that is an extreme and obvious example, the law authorises “eligible persons” to make a claim for provision to be made for them out of a deceased’s estate where they have been left out of, or where they have otherwise received inadequate provision, in a Will.

Who are eligible persons under the law? They include husbands, wives, defacto partners, children, former wives and husbands and persons with a close personal relationship with the deceased.

But what if, when making your will, you do not want to provide for some people (who may otherwise be “eligible persons”)?

This scenario may arise in situations where:

1. You have already provided for that person during your lifetime; or

2. The conduct of that person during your lifetime underpins your refusal to make a provision for them

In either such situation, in order to limit the prospects of a successful challenge to your Will, you can prepare a statutory declaration explaining your decision. That statutory declaration will enable your story to be told after your death and can be used by your executor to combat claims that your Will was not fair, or that your reasons for leaving someone out were mistaken.

This type of statutory declaration will need to be as comprehensive as possible and refer to, attach, or be based on specific documentary evidence to support them. The statutory declaration will only be helpful to your executor in opposing a claim for provision if it contains accurate and reliable statements. Simple generalisations such as, “I have left my son out of my will because he never came to visit me” are particularly unhelpful because generalisations are readily proved to be inaccurate.

In a situation where you provided for a person during your lifetime (and do not want them to successfully claim against your estate after your death), your declaration could detail the exact amount given to them, the date and reason why it was given and can annex a bank statement to confirm the payment. By undertaking this analysis, your lawyer can give you more specific advice on the extent of the risk of a successful challenge to your Will, and then advise you of any further steps you should take to prevent such a challenge.

When a person’s conduct towards you has been such that you want to exclude them from your Will and limit the risk of them making a successful claim, your declaration can explain: why you are estranged; the cause of the estrangement; and the detail of the person’s behaviour complained of.

Total disqualification of an eligible person can be difficult, as courts regularly recognise the moral obligation of a deceased to provide for an eligible person. However, a detailed and thorough statutory declaration can be a powerful tool to persuade the court to support your wishes as set out in your Will.

For more information on statutory declarations, Wills or how to contest a Will, contact our Wills and Estates Team. .