By Boyd Johnstone

Benjamin Franklin once said that Death and Taxes are the only two things that are certain in life. For those who can accept this, planning for this inevitability is primarily for two reasons:

1. Firstly, we want to care and provide for those we loved and ensure that life for our loved ones is as easy as possible following our passing; and
2. Secondly, (whilst no one can rule from the grave) to ensure our wishes are followed after our passing.

Whilst we could say that doing this is as simple as booking an appointment with your solicitor to prepare a Will; this is not always the case.  When obtaining succession planning advice, you need to ensure the Solicitor who you engage will have the tough conversations with you and provide you with upfront and frank advice, even if it is advice you may not want to hear.

Too often we see that inadequate or non-frank discussions at the time a Will is drafted can leave an estate open to a Claim against it (known as a Family Provision Application). Thereby creating further difficulties for your loved ones at the time of your passing.

Historically, it was held that a testator (a person writing a Will) had an unfettered right to testamentary freedom; that is, to leave their Estate to whomever they chose. This is no longer the case in Queensland (or other Australian States).  There are certain classes of people who ought to be considered when undertaking succession planning to ensure your estate is not at risk of being contested.  There are three basic tests a court will consider for a Family Provision Application under the Succession Act 1981 (Qld); which is:

1. Who are the people that are entitled to bring an Application (a spouse, a child (including stepchildren and defacto children from another relationship), and/or a dependent);
2. Is that person receiving an adequate provision; and
3. If not, why, and what would be an adequate provision?

Take Away

 Like all litigation, Estate Litigation is a lengthy and costly exercise; sometimes taking years to proceed to Settlement or trial. However, Estate Litigation differs somewhat from other litigation on the matter of Costs. Primarily, if an Applicant’s claim is not deemed to be frivolous or vexatious; those costs are borne by the Estate and are treated as a debt of the Estate. It is therefore not hard to see how a Family Provision Application (particularly one with multiple Applicants all with separate legal representation) can quickly eat away at your hard-earned Estate; with thousands of dollars paid in legal fees (which we are sure you would prefer to see go to your loved ones).

At Kanther Law our Estate Planning Team will have the difficult conversations with you and give you the tough advice to best protect: your wishes; your hard-earned estate; and your loved ones.