Wills & Succession
8. Wills & Family Provision
Authors: Savage Julia
Firm / Chambers:
Last updated: 24 Aug 2015
- A family provision claim is a claim for a share or larger share of a deceased’s estate.
- The claim may be for a share of the estate where the person claiming has not been left a gift at all or it may be a claim for a greater share where they have been left less than they believe they should have.
- When making a will it is important that the testator considers the fairness of their gifts.
- For example if a testator has two children and they wish to leave gifts of equal value to their children then at the estate planning phase the testator must look ahead to the value of the particular gifts.
- One gift my increase in value faster than the other gift.
- This would mean that one child will receive a gift under the will that is worth more than the other child’s gift thereby creating inequity and the potential for a family provision claim by the child who receives less from the estate.
- Another situation that commonly results in a family provision claim is where a specific gift to a beneficiary is sold before the testator dies.
- In this situation the beneficiary of that gift will not receive any gift at all because their gift will have ‘adeemed.' This means that the gift is treated as though it never existed because it is not part of the testator’s estate at the date of their death.
- A testator may decide not to leave a gift to someone. This may be done for any number of reasons for example:
- the testator gave money to the person in their lifetime;
- they decide not to leave a gift or to leave a reduced gift to an estranged child; or
- they wish to reward a child who assisted and supported them in their later years by leaving a larger gift to that child.
- Where inequity exists it is difficult to protect the estate from a family provision claim.
- However it may be avoided if the testator explains their reasons for leaving certain gifts to the different beneficiaries and those who are excluded as a beneficiary under the will.
- It is possible for a testator to include their reasons in the will. This is not always recommended as the original will is sent to the court for the purpose of probate after the testator dies.
- If a family provision claim is made the contents of the will may become public knowledge.
- A better practice is to document the testator’s reasons in a separate document that may be included with the will in the form of a statement by the testator for example:
- informal statement;
- statutory declaration;
- letter; or
- affidavit.
- In the event of a family provision claim side documents are not binding on the court however they show the court that the testator considered the impact of their will and is evidence of the testator’s reasons for excluding a beneficiary.
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