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Be careful what you wish for

Warren Wackerling and Luke Bull – 29 May 2015

A will is a vehicle that enables your wishes to be carried out when you are gone.  It may come as a surprise, that what you wish is not always necessarily what transpires.  A recent decision in the Supreme Court of Queensland illustrates what can go wrong.

Facts

The deceased died in 2012 aged 79 (the deceased) survived by his wife, their adult son and an older son from a previous relationship.

The older son benefited little from deceased’s will in proportion to the whole estate, with the majority of the estate instead left to the deceased’s surviving wife and their son.

The older son applied to Court under provisions of the Succession Act 1981 (Qld) for a better provision be made.  The basis of the claim was adequate provision was not made for the ‘proper maintenance and support’ of the applicant being a ‘child of the deceased’s estate’ – commonly referred to as ‘testator’s family maintenance claim’ or ‘TFM’.

In determining the application the Court considered whether the applicant was left without ‘adequate provision for his proper maintenance, education and advancement in life’.  Despite the fact the applicant was 49 years of age, the court held the deceased had failed to provide for him.   The facts are set out at length in the decision here.

A central consideration for the Court was the fact the elder son’s financial situation and earning capacity was very poor, while the size of the estate was large.  The Judge found it reasonable that a better provision be made out of the estate and awarded the applicant a further $500,000.00 above his interested under the will.

The decision is within the period for appeal at the time of writing.

What do I need to be careful about?

Seek advice on how best to manage distribution of an estate in a ‘strained’ family relationship to avoid a testator’s family maintenance application. 

Despite intents to preclude a party, the person making the will must contemplate all potential claims, even from adult children. 

Download the decision here. 

This article is for general information only and should not be relied upon as a substitute for specific legal advice.