So, You’ve Been Left Out of the Will?

The person who is disappointed because they are not being made a beneficiary under a will or did not receive a sufficient share of the estate under the will, can have a remedy because of Chapter 13 Family Provisions of the Succession Act 1981.

The Court can decide whether or not proper maintenance and support has been left to the disappointed beneficiary under the will. The classes of people who can bring the application are limited by the Succession Act to a spouse, a child or a dependant. A spouse or a child can bring the claim whether or not they were dependent on the deceased, but a dependant must show dependency.

Defactos come within the legislative scheme.

The most used statement for the test of proper maintenance and support come from the Privy Council in Bosch v Perpetual Trustee Co (Ltd) ([1938)] AC 463 at 478. “The act is designed to enforce the moral obligation of the testator to use his testamentary powers for the purpose of making an adequate provision after his death for the support of his wife and children (nowadays that includes defactos and dependants) and in regard to his means, to the means and deserts of the several claimants, and the relative urgency of the various moral claims upon his bounty. The provision which the court may make in default of testamentary on vision, is that which a just and wise father would have thought it his moral duty to make the interest of his widow and children had he has been fully aware of all the relevant circumstances. The amount to be provided is not to be mentioned solely by the need of maintenance. It would be so if the court were concerned merely with the adequacy. But the court has to consider what is proper maintenance, and therefore, property left by the testator has to be taken into consideration. Where, therefore, the estate is a large one, the court will be justified in such a case in making provision to meet contingencies that might have to be disregarded where the estate is small.”

The application of the court must be made within nine months of the date of the death and in Queensland the rights given by the Succession Act 1981 cannot be contracted out of.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 11 April 18