There is a saying that you can’t choose your family and it is simply a fact of life that not all families get along. This becomes particularly apparent in dealing with estate matters such a preparing a person’s will or acting in a contested estate.
It is important that, when making a will, people understand their duties to their family members. Many will-makers who may have estranged children simply wish to leave their children out of their will entirely because they feel, for whatever reason, that their children do not ‘deserve’ to benefit from their estate, or else they wish to leave their children a minimal entitlement as they believe that this will prevent their child from challenging their estate.
The law in Queensland however is not so straightforward. If a person’s ‘spouse, child or dependant’ feels they have not been adequately provided for in that person’s will, they can bring a court application seeking further and better provision from their estate. This is based on the idea that a testator has a ‘moral obligation’ to adequately provide for the people that fall within those categories.
The fact that the aggrieved person falls within one of these categories is enough to entitle them to bring a court application, and the fact that the person making the will has decided they are not ‘deserving’ of provision or has left them a small amount is not enough to preclude their family member from challenging their estate. The strength of the aggrieved person’s application, however, depends on a range of different factors, one of which of course is the freedom of a testator to divide their estate in accordance with their own wishes. The court will also take into account other factors such as the aggrieved parties’ financial position, the financial position of the estate, and the reasons for any estrangement.
In other words, families can be complex and it is important to give detailed consideration when making a will, particularly when dealing with family members between whom the relationship has broken down. We would recommend that you contact our office on 07 3262 6122 to seek legal advice before deciding how to divide your estate.