Last will and testament.

Testamentary Freedom In A Will

Testamentary Freedom in a Will,  is commonly spoken about in relation to being able to leave your assets to whoever you wish.

However, in all Australian jurisdictions Testamentary Freedom is tempered by family provision legislation, which requires a person to make adequate provision for the proper maintenance, advancement and education in life of an eligible person. An eligible person includes spouses, ex spouses, de facto partners and ex de facto partners and children. In certain circumstances an eligible person can also include, grandchildren or anyone else, who had a close personal relationship with the deceased.

A failure to make adequate provision for an eligible person in your Will, can result in the Court intervening in your Will and making adjustments in order to provide this adequate provision.

A recent example of a family provision claim can be seen in the New South Wales Supreme Court decision, of Goldberg v Landerer.

In these proceedings  the deceased, Louis Kennedy, was succeeded by his second wife and two children from his first marriage. The deceased’s Estate was valued at $5 million which included real estate, commercial property and a share in the deceased’s jewellery business.

The Will of the deceased left $50,000 to each of his two children with the balance of his Estate left to his second wife, Martha. The deceased’s Will explained that, the reason he had only left his children $50,000 each was their behaviour towards him, stating that they had treated him with nothing but contempt and had no care for him other than to, extract money from him and that they had not cared for him in his bad health.  In addition, the deceased detailed the financial assistance he had already provided for his children during his lifetime.

The deceased’s children both challenged the Will on the basis that, their provision was inadequate and that the Will should be adjusted to provide for their maintenance, education or advancement in life.

At the time of the Will Challenge, the deceased’s daughter Judy was 61 years of age, working part-time as a sales assistant and suffering from some serious medical problems.  Judy had been made bankrupt in 2006 and lived in rented accommodation in Bondi Junction. Judy was seeking a provision of $800,000 for a two bedroom unit in Bondi Junction and a lump sum of $400,000.

At the time of the Will Challenge the deceased’s son Rony was 57 years of age, unemployed and suffering from depression. Rony sought provision from the Estate for property between $600,000 and $800,000 and a lump sum payment of $200,000.

After considering the evidence the Court came to the conclusion that the deceased had failed to make adequate provision for his two children in his Will.

The Court decided that the appropriate provision for Judy from the Estate was $850,000 and that the appropriate provision for Rony was a life estate in a one bedroom unit with a value not exceeding $400,000.

If you need advice on Testamentary Freedom and its limits or restrictions and how to limit the possibility of a Family Provision Claim you need to seek legal advice from an Expert Wills & Estates Lawyer. You need to speak to the expert lawyers at Sydney Wills Lawyers on Family Provision Claims and their possible impact on your Will.  We specialise in Wills & Estate Law and pride ourselves on our open and honest communication with clients. 

We offer ‘No Win No Fee’ on Will Challenges or disputes, please call our Sydney, CBD office, to find out our policy. For an appointment with the experts on Wills and Estates call 9221 2779.

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