In the ACT, as in other jurisdictions in Australia, legislation prescribes the categories of persons who are eligible to dispute a deceased person's Will or estate in Court.
These persons include a partner of the deceased person, a child of the Deceased and, in certain circumstances, a person who was in a domestic relationship with the deceased person, a step-child of the deceased person, a grandchild of the deceased person, and a parent of the deceased person.
It is often mistakenly believed that the deceased's wishes are the sole factor in determining how a deceased person's estate is distributed however the Court may make an order for provision from the estate as the Court thinks fit, provided it is satisfied no adequate provision for the proper, maintenance education and advancement in life is available for the applicant under the Will of the deceased.
In deciding whether adequate provision has been made for the applicant, the Court must consider criteria contained in the Family Provision Act 1969 (ACT) and societal expectations and relevant case law. The criteria contained in the legislation do not specifically require consideration of the Deceased's reasons however permit consideration by the Court of 'any other matter the court considers relevant.'
Whilst this is a broad power, in accordance with principles of statutory interpretation, it is tempered by the prescribed criteria preceding it and the objects of the legislation. The Family Provision Act 1969 (ACT) does not contain an overarching objects clause however it contains particular provisions for "redistributing" a deceased's person's estate. It follows that the deceased's wishes are a relevant factor and should be taken into account by the Court in considering the extent of a family provision order, if any.
The executor of a deceased's estate is appointed, and has a duty, to act in accordance with the deceased's Will however tension may arise in the executor's discharge of this duty where the deceased's Will may not be an accurate reflection of the deceased's wishes. An example of where the deceased's Will may not be an accurate reflection of his or her wishes is where the Will has not been updated accordingly.
Protests that that the deceased's Will 'counts for nothing' or that the Deceased's wishes are not being honoured, and questions about "why can't I leave my property to whomever I want" are not uncommon in estate disputes and estate planning.
When a Will is made that leaves out a relative of the Deceased, or includes provision from their estate someone who is undeserving, we believe there will be a dispute.
It is important to ensure that outcomes best reflect the wishes and testamentary intentions of the Deceased.
Our estate planning team provides options and advice to mitigate the risk of an estate dispute and ensures that if a dispute does eventuate it has been contained in a way that gives due regard to your testamentary intentions to the maximum extent possible.
We routinely appear in ACT and NSW Supreme Court in disputed estates litigation and we provide advisory and consultancy services in other jurisdictions in Australia including in Victoria and Queensland.
More recently has been a trend of increasing claims made by grandchildren and the firm has been involved in several of these and obtained excellent outcomes for a number of clients.