Can you avoid an eligible person making a claim on your Estate?

Worried About Capacity and Making a Will?

Claims being made on an estate is a very worrying thought for a lot of people.

For someone to make a family provision claim on your Estate, they must fall under one of the following categories of eligible people pursuant to section 57 of the Succession Act 2006:

  • Spouse or de facto partner at the time of death;
  • Former spouse;
  • Children (including adopted children);
  • A person who, at any particular time, was wholly or partly dependant on the deceased AND who is a grandchild of the deceased, OR was a member of the deceased’s household; and
  • A person who was living in a close personal relationship with the deceased at the time of death. 

Should you not make provision for the above categories of eligible persons, you are leaving your Estate open to such persons making a claim on it. 

But is there anything you can do to stop an eligible person making a claim on your Estate?

The short answer is – no. 

However, there are steps you can take to minimise any potential claims. 

Firstly, and most importantly, is to ensure that you have a valid Will.  This ensures that you have the opportunity to dictate to whom your Estate should be given.  Passing away without a Will, or dying intestate, means that you do not have a say in the way your Estate is distributed – it will instead be distributed according to the laws of intestacy. 

Secondly, you can provide for these eligible persons in your Will.  However, it should be noted that an eligible person may still be entitled to make a claim where limited provision is given, for example, a nominal gift is bequeathed to them. 

Alternatively, if you do not wish to provide for an eligible person in your Will at all, it is recommended to include a specific wish within the Will, specifically stating why you have chosen to exclude this eligible person.  This does not stop the eligible person from making a claim, however, will be examined by the Supreme Court when the claim is determined.   

  

It is also important to note that in the event a family provisions claim is made, your Executor will need to defend the claim on your Estate, at cost to the Estate itself, meaning that the size of the Estate will be depleted for your beneficiaries. 

Additionally, a claim must be filed with the Supreme Court within 12 months of the date of the testator’s death.

As well as this, there are actions you can take during life to ensure that the Estate at the time of your death is minimal.  This can include:

  • Gifting assets during your lifetime.
  • Purchasing property as joint tenants.
    • Due to the right of survivorship, your interest in the property is automatically transferred to the other joint tenant upon death.
  • Creating a trust.
  • Place additional funds into superannuation.
  • Super is held by the trustee of the super fund and is distributed according to a binding death benefit nomination made by the member.

Our team are experienced in preparing Wills and are able to navigate the issue of eligible persons with you. 

If you are concerned about potential claims or would look to ensure that your family is looked after, please reach out to our team at info@familyfocuslegal.com.au

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