Clients often require advice on avoiding family provision claims, when considering their estate planning. New commentary has been added to the By Lawyers Wills Guides concerning the issues that should be considered when drafting a will in circumstances where a family provision claim against the estate of the testator appears possible.
This new commentary considers two common issues raised by testators when giving instructions for wills:
- How to leave their estate to their partner and prevent children or step children from making a claim on the estate; and
- How to leave the estate to their partner, whilst ensuring their children by a prior relationship are benefited on the death of that partner.
The commentary discusses some general principles from the cases and provides a range of likely outcomes for a number of classes of claimants under family provision legislation, which will assist practitioners when they are advising clients who are deciding how to distribute their estates to best avoid a potential claim.
In essence, while there is no absolute way of avoiding a family provision claim by an eligible person against a testator’s estate, appropriate consideration when preparing a client’s will can minimise the prospects or quantum of any claim, or at least ensure the testator has a clear understanding of the issues.