Deceased Estate Claims - Freedom to do what you want with your estate is limited

No doubt you’ve heard people say from time to time they think they should be able to do what they like with their wills and how their estate, being their assets, is given once they die. They’ve worked hard all their lives, they’ve amassed a lot, or a little, and now, considering who should get their assets once they ‘go to a better place’, they frequently decide they’ll vent their disapproval of one or more of their children’s behaviour towards them by favouring one over another. All kinds of value judgements are made in the process, judgements about the lifestyle of one child and how one may appear to be a better person or more deserving than another. The difficulty in doing this is that emotions can get the better of them. And emotions can run particularly deep when it comes to family members.

Apart from the law, there are moral obligations which are generally observed or recognized in the community. So while it may not be unlawful to not give someone a part of the estate in their will, it may be unfair. Such moral obligations play a role in the context of wills and the administration of deceased estates. The law takes into account certain moral responsibilities owed by some persons, particularly parents, during their lifetime or afterwards towards some family members.

These obligations or responsibilities are recognized in the legislation which, in New South Wales, deals with family maintenance and providing for family members in wills. In NSW there has been a history of such legislation, going back to the Testator’s Family Maintenance and Guardianship of Infants Act 1916 through to the Family Provision Act 1982 and now, the Succession Act 2006.

The legislation recognizes that in some cases, a person’s will may need to be re-written so as to allow a person who falls within one or more categories to make a claim against a deceased person’s estate. The court may make orders which have the effect of allowing someone who has not been given anything, or a disproportionately small amount, to have more than has been given under the will.

Of course, that may seem unfair to some people, who believe that it should be up to the person who makes the will to decide what he or she wants to do with their assets. But that’s not what the law in NSW provides. It takes into account what certain persons should have given by their wills.

The legislation takes into account various factors such as, firstly, whether the person making a claim is an ‘eligible person’ (as defined in the legislation), whether there are circumstances which justify the making of orders to allow a claim, and whether there has been adequate provision made in the will for the proper maintenance, education or advancement in life of that person. In turn, whether the court will make orders to allow a portion of a deceased estate to be given to a person will depend on the facts of the particular case.

Those facts can be affected by the nature and quality of the relationship between the person making the claim and the deceased person, the means and needs of the person making the claim compared with the size of the estate, and other factors such as whether and to what extent the person making the claim contributed to the property and welfare of the deceased person, the character and conduct of the person making the claim before and after the death of the deceased, circumstances before and after the deceased person’s death, and any other matters the court considers relevant including matters which were in existence before or after the deceased person’s death.  

So the freedom to give whatever you want when you die is restricted to the extent that the law recognizes moral obligations which may be owed by a person to another. These should be taken into account when making a will.