How to Bulletproof a Will from Family Provision Claims

Recently SBS Insight addressed the topic of “Making a Will”.  The programme explored how the family provision laws under the Succession Act 2006 (NSW) enables a Court to effectively rewrite a person’s Will where it is found that an inadequate provision has been made for an eligible person.

Two (2) of the guests that were interviewed gave stories of how their parents had provided financial accommodation to one of their siblings early on in their lives with the intention, and agreement of the children, that that assistance would essentially be an early inheritance and that the remainder of the parents’ Estate would be divided among the other siblings only.

Despite those circumstances, in each case, the sibling who had received the early financial assistance was able to bring a claim for provision from the Estate and either obtained a successful Judgment or were able to negotiate a settlement as a result of which they seemingly ended up receiving more than their fair share of the parents’ Estate to the detriment of their siblings.

There was a general frustration by the parties concerned with the current state of the laws relating to family provision claims, including by the Lawyers who provided comment during the show, that there was nothing that could be done to overcome the Court’s power to effectively rewrite a person’s Will.

Despite the apparent consensus that there was nothing that could be done:

  • The law in fact enables parties to negotiate a release of a person’s right to bring a claim for provision from someone’s Estate,
  • Section 95 of the Succession Act 2006 (NSW) deals with the circumstances when such a release will have effect.

Further, such releases are commonly negotiated as part of a family law property settlement.

So there can be no doubt that in NSW a person can protect their Estate from challenge by another person if they are able to negotiate a release of the person’s right to apply for a Family Provision Order and the requirements of Section 95 are met.  The more pertinent question is, therefore, how and when could anyone negotiate such a release?

Typically, a release would be hard to negotiate except in circumstances where there is some other consideration being provided at the time.  In the above situations, where a parent has provided earlier financial assistance in life, that assistance could, and should, have been provided conditionally upon the child entering into an agreement pursuant to which they:

  • Release their right to apply for a Family Provision Order in respect of their parents’ Estates, and
  • Agree to do all things reasonable and necessary to obtain approval of such release by the Court in order to satisfy the requirements of Section 95 of the Succession Act.

Had such an agreement been negotiated and Court approval obtained in relation to the release, the children who had received the early financial assistance in life would have been unable to subsequently bring any claim for further provision from their parents’ Estates.  Had the parents taken these Estate Planning measures they would have:

  • Ensured that their remaining children received the inheritance that they intended, and
  • Protected their remaining children from the stress and legal costs associated with defending a Family Provision claim.

Unfortunately, too often people do things without any consideration or awareness of the Estate Planning Solutions available to them.

For more information about issues relevant to Advanced Estate Planning and the Simple Legal Solutions that might appropriate to your personal circumstances download “Advanced Estate Planning – Simple Legal Solutions” here.

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By Sam Roberts

[1] Toh v Su [2017] NSWLC 10 at 20

[2] At 22.