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Having the Last Word? Will making and contestation in Australia. The University of Queensland.

posted May 19, 2015, 3:08 AM by Greg Anastasi

You would think they just read this web site?

The courts don’t reflect community expectations.
Non dependants claim and win a lot.
Only changing the law will fix the problem with the FPA.

What do you think?

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Having the Last Word? Will making and contestation in Australia. The University of Queensland.

Recommendations

13. There is evidence that competent and financially comfortable adults are making successful family provision claims as are extended family. These findings raise questions about the need for legislative reform as well as consideration of the norms, principles and legal
grounds underlying court judgments and mediation.

14. A sense of entitlement from adult children as beneficiaries, regardless of need and testator’s intentions, should be broadly challenged in community education, legal education and in practice processes. The intentions of family provision legislation should be more widely understood and supported.

15. Facilitators of contestation such as the high rate of success (both before the courts and in mediated agreements), community attitudes and legal culture that, in some circumstances, encourages contestation require further systematic investigation.

16. Community and legal education (including continuing professional development for lawyers) is needed to address cultural concerns. State and Territory Governments should also review their succession law, and in particular their family provision legislation, to ensure that the appropriate balance is struck between testamentary freedom and the duty to provide for family.

Recent legislative changes in Victoria around family provision to tighten eligibility to be a claimant and to give greater weight to demonstrating dependency on the testator at the time of their death have been noted. There is also a renewed focus on regard for testamentary freedom.
These changes provide a basis to evaluate the impact of legislative reform of this type and should be the subject of empirical research.

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