Clifford Gouldson Lawyers

Timely reminder to be nice to your mum

Print Version

18/11/2016

Over the last 10 years it has become increasingly common for an unequal distribution to adult children in a Will to be successfully challenged.  Called a Family Provision Application, these court proceedings frequently resulted in an adjustment of the provisions of the Will to see extra money distributed to adult children who claimed to have been shortchanged.

For those people with genuine reasons (whether financial, moral or emotional) for making an unequal distribution to their adult children this was a very frustrating situation knowing their Will may well be overturned.  For estate planning lawyers trying to deliver what their clients wanted, it was infuriating.

Has the tide turned?

In recent years there has been an increasing number of judgments across Australia dismissing claims by adult children with the courts willing to delve more deeply into the reasons for unequal distributions and upholding the testator's wishes.

While lawyers may argue over whether it represents a strict interpretation of the legislation it is easy to see why the average person might wholeheartedly agree that some of these cases definitely deserved to be dismissed with no extra money going to the claimants.

Some examples include the man whose mother died leaving her entire estate to her long term 2nd spouse and the applicant's claim for further provision was based not on his current living situation but on his desire to top up his superannuation so that he would be able to retire comfortably in the future.  Another example is the lady who wanted a greater share of her mother’s estate than her siblings so she could buy a house despite having been unable to do this through her own efforts.

A theme is apparent from recent decisions - the courts are requiring more evidence of need or why the deceased should morally have made provision for the applicant. 

It would be fair to say that adult children who are able to support themselves are finding it a little more difficult to successfully provide the evidence that they are not adequately provided for in an unequal distribution of their parent's estate where the claim appears to be based in part on what they feel they deserved.

In situations where the claimant can demonstrate a real need and the Will creates an obvious inequity then those claimants are still achieving success in the courts

So where does that leave the majority of adult children?

Each application to the Court will turn on its own facts.

If you're preparing your Will and considering unequal distributions to your adult children you should get advice around your reasons for doing so and make sure you document your wishes in a way that will assist a Court that may later be asked to consider disturbing those wishes.

And if you think that your parents might be making an unequal distribution in their Wills and your personal circumstances are such that the provision they are making for you would be considered adequate, even if it is less than your siblings, perhaps it is time to give your Mum a call and offer to mow the lawn this weekend?

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