Many people believe writing a Will guarantees their final wishes will be carried out exactly as planned. In accordance with the provisions of the Succession Act (NSW), certain individuals may have the right to challenge a Will if appropriate provision has not been made for them. These claims—commonly known as family provision claims—can significantly impact the distribution of an estate and the wishes of the deceased.
Succession laws exist to ensure people who were dependent on the deceased, such as spouses, children, or other close family members, are not left without reasonable financial support. While the legislative provisions serve an important social function, they can also create uncertainty in estate planning, particularly in families with complex relationships, blended families, or estranged members.
Succession planning is about more than just drafting a Will—it’s about thinking ahead, identifying potential risks, and ensuring that your estate plan is both legally sound and practical. According to Julianne Carroll, Solicitor Director at Commins Hendriks, “A well-drafted Will is only one part of the picture. It’s also important to consider who might challenge your Will and how you can reduce the risks of any future claim.”
Julianne recommends open and early communication with family members, documenting the reasons if there are to be unequal gifts, and seeking professional advice where needed. In some cases, leaving a written statement or a recording with your Will explaining your intentions can help reduce the likelihood of a successful challenge.
Courts consider a range of factors when deciding family provision claims, including the financial needs of the person making the claim, their relationship with the deceased, and the size of the estate. It’s more important than ever to take a thoughtful approach.
If you’re reviewing your Will or helping a loved one with theirs, understanding succession laws can be a key part of safeguarding your wishes. Sound planning today can reduce the risk of disputes tomorrow and ensure your legacy is protected.
Reach out to Commins Hendriks if you need any legal assistance.