Well written wills can avoid courts

As an increasingly high number of marriages and relationships breakdown, the need to carefully draft wills to avoid costly family squabbles has become more important, warns a senior Gold Coast solicitor.

Hickey Lawyers commercial and estate planning manager Rod Barnes said family provision applications, which often involved expensive litigation, were becoming more common.

“These applications often result in a large estate turning into a small estate and with the number of relationship separations on the rise, they are happening more often,” he said.

“The family provision legislation was developed to ensure proper maintenance and support of a person’s spouse, child or dependent was allocated from an estate.

“This means will makers need to balance the competing interests of children from a prior marriage, their current spouse or partner and children or step-children of a new relationship.

“For example, if a man left all his property to his girlfriend and nothing to his wife, then his wife can ask the court to change the terms of the will.

“While people may think this situation is extreme, it is becoming all too common.

“With the legal expenses involved in litigation often paid out of the estate, it can also be very costly.”

Mr Barnes, who has more than 30 years experience in wills and estate planning, said the courts, in numerous previous decisions on family provision applications, had set principles that provided some guidance.

“Adult children who are well off and have not contributed to the will maker’s estate often find that, despite their disappointment, they have a hard task to convince a court to make an order in their favour,” he said.

“One of the most challenging areas concerns children who have disappointed their parents in some way, for example with a drug or alcohol dependency.

“Often in these situations the parent-child relationship becomes strained and the child may be excluded from a will, yet it is these children who often demonstrate a strong need for a family provision.”

Mr Barnes said wills were a key element in the estate planning process, but there were several other relevant documents including powers of attorney, superannuation trust deeds, family trust deeds, company constitutions and business succession agreements.

He said will makers should ensure they seek prudent legal advice, consider the interests of all concerned, regularly review their will and, in some circumstances, speak to family members to achieve a level of consensus.

“Those who put their head in the sand and take a ‘it won’t happen to my family’ view may well find as they look down from above that their loving family is at war and strongly contesting what they say is their entitlement,” he said.

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