RE-WRITING A WILL OR WHAT TO DO IF YOU ARE LEFT OUT OF A WILL
by Leeanne Bou-Samra
It comes as a large surprise to many to learn that
it is indeed possible for a Will to be “re-written” following the
death of the will-maker. Under the Queensland Succession Act 1981 an
application can be made to a court by the will-maker’s spouse, child
or dependent should adequate provision not be made from the estate
for that person’s proper maintenance and support.
“Child” includes a step-child or adopted child. A
“dependant” is a person who was being wholly or substantially
supported at the time of the will-maker’s death, who was a parent of
the will-maker, the parent of a surviving child under the age of 18
years of the will-maker or a person under the age of 18 years.
The initial job for a court is to work out whether
adequate provision has or has not been made for the proper support
of a qualified applicant. The classic test as to what is proper
provision is to consider what should have been done by a “wise and
just” will-maker rather than by a “fond and foolish” will-maker.
Matters which loom large in this exercise are the financial position
of the applicant for provision, the size and nature of the estate,
the totality of the relationship between the applicant and the
will-maker and the relationship between the will-maker and other
persons who may have a legitimate claim on the estate.
An applicant widow or infant child can be readily
understood to have a legitimate claim to be maintained and
supported. What then of adult sons and daughters who claim they have
not been adequately provided for in their father or mother’s Will?
It was once thought that an adult applicant needed to show some
special need to justify a claim but that approach now seems to have
been discarded in favour of the approach of considering both need
and a moral claim of the adult applicant. A moral claim may arise
simply out of the relationship between child and parent.
The second stage of the process is for the court to
determine the extent to which provision ought to be made out of the
estate. There may be some circumstances in which a court can refuse
to order further provision even though the applicant may have been
found to have been left without adequate provision. These
circumstances could include, for example, a deliberate decision by
the applicant not to make contact with the will-maker before death.
An application for family provision under the
Succession Act must be filed within nine (9) months of the death of
the will-maker.
Except in exceptional circumstances, the legal costs
involved in an application for further provision are paid out of the
estate. The philosophy of the courts is squarely aimed at a speedy
resolution of these disputes.
Leeanne Bou-Samra is a lawyer with Miller Bou-Samra
Lawyers and advises in Family Provision claims.
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