IntroductionEvery year hundreds of wills are challenged by those that believe the deceased should have provided more for them in there will. A few of these would be considered reasonable, such as young children that have been left out of a will to spite an ex-husband or wife.
Occasionally the Family Provision Act is used to remedy an unfair distribution when someone dies without a will (intestate) and the distribution using the rules of intestacy are inadequate for the situation. Another example is where a person may work (say on a farm) for many years for little reward and then after having a falling out with the testator is dis-inherited.
I think most people would agree that in the above examples are where testamentary freedom has been abused and need to be righted.
Unfortunately the examples above are the minority and most challenges are by adult children that have chosen to abandon any responsibility to there parents but believe they are "due" a share of the estate.
The Supreme court has interpreted the Act to mean you have a moral obligation to your children no matter what there age and no mater their behavior.
The Purpose (Mission)
- To have the Family Provision Act's across Australia changed to reflect community expectations of testamentary freedom.
- To rein in the excesses of the Supreme Court and the "lawyers law" that is in the Family Provision Act.
These are the targets we want to meet
- Show the Attorney Generals that there is a problem.
- Convince the Attorney Generals to commission a study into community expectations.
- Have the Act changed to limit valid claimants to:A partner of the deceased, a dependant of the deceased, non-adult child or a child or child of a child that significantly contributed to the wealth or support of the deceased.
- As with all change the main obstacle is public apathy and ignorance. Most people don't know this law exists and those that do want somebody else to do it for them.
- The second challenge is political apathy. Without pressure politicians will do nothing.
- Some in the legal industry will resist as they view it from a legal perspective and are disconnected from the common view. Although the majority see that the family provision Act is being abused.
- A small portion of the legal profession may resist change as the Family provision Act an a great money spinner for lawyers.
Benefits of changing the law
- Hundreds fewer estates being diminished or spent on legal cost.
- State governments will save tens of millions in Supreme Court budgets.
- Reduction of bad financial decisions made to circumvent a challenge to a will.
- The right to chose who gets you wealth when you die.
Negatives of changing the law
- Some people who have been treated poorly by their parents when they were young will be unable to use the Supreme Court to compensate them. Although this is not what the law was intended for.
- Some people will continue to need more welfare than if they had successfully in challenged a will. Although this is far less than the courts spend changing your will.