Do you think you have the right to leave your wealth to whomever you think deserves it
and no one can challenge your will.
Using Family Provision Act (now the Succession Act NSW) and similar Acts in every state and territory, the judge will likely ignore your Will, and give your savings to whoever they think should have it, with little regard to your wishes, or your reasons for your decisions you have made based on your lifetime of experience.
Don't think I'm exaggerating, will contests like this happens every week of every year, look at the statistics page here.
Have you been affected by the FPA? Contact me at email@example.com and share your story.
Think this wont happen to your will ?
Read some of these case notes for yourself and see how the court will over rule your wishes. (Case notes here)
Think you can avoid a will challenge ? WRONG
Gift assets away before you die - The court can reclaim assets from up to 3 years prior to death (in NSW).
Gift assets away more than 3 years in advance - The court will take this into account when calculating how you should have written you will as a "good and just testator".
Create a trust - The court has the power to re-write trust or take then into account when calculating how you should have written you will as a "good and just testator".
Give reasons in your will - The judge will comment on the fact that you thought carefully and may even commend you for doing such a good job. Then they will change the distribution to what they think is 'proper'.
I don't live in NSW - There are similar laws in all states in Australia.
What the Lawyers think of the FPA
"The legislation is a boon for practitioners as it greatly increases the number of persons who can make a claim"January 1998 "The Law Institute Journal (Victoria)" P36 when discussing changes in the Victorian Wills Act 1997 (making it more like NSW)
"There are now three certainties - death, taxes and mandatory meditations in Family Provision cases in the Supreme Court of New South Wales."(Hon. Justice P A Bergin, Chief Judge in Equity 2009)
"George Orwell's Big Brother could not have done better than the reformers who entitled the Act which gave claims against the estate to mistresses and lovers, ‘The Family Provision Act 1982’. The Act might have been more properly entitled ‘The Act to Promote the Wasting of Estates by Litigation and Lawyers Provision Act 1982".Francis C Hutley, Roy A Woodman and Olive Wood, Cases and Materials on Succession (3rd ed, Olive Wood and Noel Hutley, 1984)
How can I change this law that denies me the rite to choose who inherits my wealth when I die? (Stop someone challenging my will)
There is only one way. Write to your local MP and demand that they get the law changed. I's not as bad as you may think, they do work for you after all. Start by clicking here or send me an Email at firstname.lastname@example.org.
The freedom to distribute your wealth as you wish in your will has effectively been removed in Australia. It is too easy to challenge a will because you think you have been hard done by.
The Supreme Courts of Australia have interpreted the Family Provision Acts (now the Succession Act NSW) too broadly. The courts have effectively over written the intent of the act. The FPA (family provisions act) created to protect dependents is now used to impose a code of “moral duty” created by the court. If you said to most people the law said that they MUST provide in your will for the “ maintenance, education and advancement in life" of there adult children regardless of how they have treated you, they would think you were crazy. The parliament originally included a break on judicial freedom by including "behavior dissenting" as a reason to reduce or extinguish a claim. Today I cant imagine any behavior short of murder being considered
Every month valid wills have their distribution of assets altered. Some times this is done through the courts, but more often estates are blackmailed with high legal costs (the estate normally pays all costs win or loose) to pay people more than the will maker ever intended. People are making bad financial decisions in an attempt to circumvent the law. There are an estimated $40 million is lost in costs each year in NSW alone !
The FPA has been recognized as defective for over a decade. The New South Wales Law Reform Commission and others have all written reports outlining changes needed. Many have suggested removing non-dependent adult children from the list of valid claimants. But nothing will be done unless you do something about it !
There is only one way to fix this law, contact you state member and tell them to get this law fixed.
The New Zealand Law Commission and the New South Wales Law Reform Commission have both addressed some of the failing in the law of wills and made recommendations. Some of the recommendations are still based on case law that does not reflect community expectations. Striking off non-dependent children from the list of valid claimants would have a two fold affect,
The Act should be changed to disallow adult children as recommended in "REPORT 110 Uniform succession laws:family provision" by the New South Wales Law Reform Commission. The NSWLRC has been working with governments across Australia since before 1997 with almost no tangible outcome. If nothing else this report shows that the Act is seriously broken.
This report is a basis for change but this is a policy decision for government and if left to the legal fraternity, it will result in "Lawyers law" a compromise guided by precedent and esoteric argument. State attorneys have failed to act on the recommendations of the NSWLRC for over 15 years. Changing the legislation wording from child, to non-adult child, would be the best solution.
A study is required to asses the Australian community attitudes wills and when the court should be able to over turn them. Studies on community attitudes were used in the “Intestacy and Family Provision Claims on Death” by the Law Commission (UK). The report ended mostly focusing on intestacy and what to do when there is no will, but the community research showed that people think non dependents should have no claim on your estate.
"If there is a will and the deceased's surviving spouse or civil partner is disinherited, the Report recommends that they will be entitled to a legal share amounting to 25% of what they would have inherited if the deceased had died intestate. If children are disinherited, the Report offers two possible scenarios. First, the children would be entitled to a legal share amounting to 25% of what they would have inherited if the deceased had died intestate. Second, and more radically, dependent children should be entitled to a capital sum calculated by reference to their maintenance needs: but otherwise a person would be free to leave his estate as he or she chose and his wishes could not be disturbed by claims from adult children. Which scheme should be adopted is again a political question for the Scottish Parliament."
I don't think this second option is radical. It is what most Australians think is already the case and are shocked when they find out that they have so little freedom.