The manner in which a person chooses to leave their assets upon death can have widespread ramifications for surviving family members especially where there is an expectation of inheriting among close relatives.
When drawing a Will it is vital to be aware of what those ramifications might be in order to reduce the likelihood of a claim being brought against an estate which may cause unnecessary legal expense, delay and possible family rifts.
The law in Victoria was recently changed to limit those who are entitled to bring a claim for provision or further provision for themselves from a deceased estate where a person dies on or after 1 January 2015.
Up until the introduction of the new legislation it was possible for a wide range of people to whom the deceased ‘owed a moral duty to provide for’ to bring such a claim. Under the new law in Victoria, only “eligible persons” may now bring such a claim.
These include spouses or domestic partners or former spouses or domestic partners (in limited cases) and registered caring partners of a deceased at the time of the deceased’s death. Children (including step children and adopted children) and grandchildren of a deceased person may still bring claims but they are now more limited.
An adult child must now prove that they are not capable of providing adequately for their own proper maintenance or support if they are to succeed in a claim against their parent’s estate. Grandchildren, caring partners, members of a deceased’s household and spouses of a deceased child must now prove that they were wholly or partly dependent upon the deceased for their proper maintenance and support. No longer will parents, siblings, nephews and nieces or cousins be able to bring claims.
These changes to the law may cause Willmakers to reconsider whether they ought to provide for certain persons in their Will to avoid the likelihood of a claim being made on their estate and may further change the way they behave during their lifetime vis-à-vis their own children or grandchildren.
For example, if a Willmaker during their lifetime is providing for a grandchild in some manner which might be construed as partial dependency then there is a high risk that the grandchild could succeed in a claim on the estate of the Willmaker.
Similarly, if a Willmaker wishes to exclude from their Will a member of their household or a registered caring partner and wants to minimise the possibility of such a person bringing a successful claim against their estate then, during their lifetime they will need to ensure that the person is not wholly or partly dependent upon them at the time of the Willmaker’s death.
The new provisions in the legislation also require that any award from an estate must not provide more than is necessary for a person’s proper maintenance and support and must also be proportionate to a person’s dependency. This will limit the size of many claims particularly in large estates.
In addition, a Court must now take into account any reasons of the deceased for having left a beneficiary out of their Will (or having left them less than they were content with) and any other evidence of the deceased person’s intention in relation to providing or not providing for a claimant.
Careful consideration in the drafting of a Will, advice regarding the actions of a Willmaker during their lifetime and concerns or queries relating to claims or potential claims on Estates are all matters with which the team of Estate Planning Lawyers at Carew Counsel may assist.
Reviewed Date: 11 Aug 2016