It is very common when taking instructions for wills and estate planning to deal with issues arising from Blended Families, that is, parents that have re-partnered and have children from a previous relationship or marriage.
Recently during a conference a client asked the question;
"What would be the consequences of our father making no provision in his Will for his children?"
The family circumstances were:
- Our client had 2 sisters who are the daughters of her father and mother.
- Our client and her sisters were adults and largely self reliant.
- Their mother and father were divorced.
- Their father had remarried about 20 years ago.
- Their father has one daughter from that marriage, who was at the time still under 18 years.
In responding to this question it is necessary to consider the following;
In New South Wales, the Succession Act, 2006 ("the Act") allows certain people to claim against the estate of a deceased in certain circumstances.
To be able to make a claim against a deceased estate (including contesting a Will), a person must be an "Eligible Person" as defined in the Act.
Section 57 of the Act sets out the various people who qualify as an Eligible Person. The people listed include the deceased's wife and children.
The Court may make an order which would alter the terms of a Will if the Court is satisfied:
- That the person in whose favour the order is to be made is an Eligible Person; and
- At the time the Application is made to the Court, adequate provision for the proper maintenance, education or advancement in life of that person has not been made by the Will of the deceased.
In deciding if adequate provision for the proper maintenance, education or advancement in life has been made the Court considers all or some of the following:
- The relationship between the person making the order and the deceased.
- The nature extent of any obligations or responsibilities owed by the deceased to that person.
- The extent of the deceased's estate (which may include superannuation entitlements, life insurance entitlements or similar, that are not strictly assets of the estate) that exists when an application is made.
- The financial resources, including earning capacity and financial needs both present and future of the person making the application.
- If the person making the Application is living with another person, the financial circumstances of that other person.
- Any physical, intellectual or mental disability of the person making the application.
- The age of the person making the application.
- Any contributions (whether financial or otherwise) made by the person making the application to the acquisition, conservation and improvement of the estate of the deceased.
- Any provision made by the deceased during his lifetime to the person making the application.
- Whether any other person is liable to support the person making the application.
- The character and conduct of both the deceased and the person making the application toward each other.
- Any other matter the Court considers relevant.
The answer to the specific question is;
- If our client's father does not make provision for one or all of his children in his will, then his children are able to apply to the court asking for some provision to be made for them.
- Whether or not a court would grant such an application and make a provision, will depend upon how the court deals with points set out above.
Any proceedings commenced under the terms of the Act are normally expensive. The actual cost will depend on a number of factors, including the complexity of the estate and the issues to be dealt with.
It is possible if the person making the claim is successful, the estate will pay the majority of their legal costs, in addition to the costs incurred by the estate in defending the claim.
It is important a person carefully considers who will be a beneficiary under their Will. This consideration may avoid the emotional, psychological and financial cost that might arise in litigation over an estate.
These disputes almost always result in the irretrievable breakdown of family relationships that might have been avoided, or at least minimised, with a carefully prepared Will after obtaining sound legal advice.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.