Kyle McCabe providing Q & A on the 2GB Chris Smith Morning Show discussing “Unfair Wills” 20 February 2021
Kyle McCabe providing Q & A on the 2GB Chris Smith Morning Show discussing "Unfair Wills" 20 February 2021
CS – Chris Smith / KM – Kyle McCabe – C1,2,3, etc – Callers
Listen to the Podcast
Read the Transcript below:
KM Hi Chris.
CS Good to have your company. Now we’ve had an email from Sam – one of our listeners who says his brother who didn’t talk to their mum for 20 years before she died. He’s trying to challenge their mother’s Will because she left him out of her Will. Can he still make a claim against his mum’s Estate even though he was estranged from mum for that long when she passed away?
KM Well Chris, the short answer is “yes”. So any person that is considered an eligible person and children are considered eligible people under the Succession Act are automatically entitled to bring a claim for Family Provisions. So that’s sort of a right that they have under the law. Now it’s not to say that if an applicant for Family Provision has been estranged from their parent for a period of time, that such estrangement could be considered disentitling conduct – so for example, the Court would look into if its alleged there’s been a long estrangement; the Court looks into who was the cause of that estrangement; now as you can imagine that would involve quite a thorough investigation into events that you know could have happened 20, 30, 40 years ago.
CS And they fell out etc.
KM Yes that’s right
CS Is there any way for someone making their Will to defeat a claim from an estranged child in those circumstances to make sure there as no challenge because so many people who put their Will together would prefer that their children wouldn’t fight it.
KM Exactly right and it can be a very difficult proposition when someone comes in and says – I haven’t spoken to my child for 30 years and got nothing to do with them – I don’t see my grandkids and you know – I want to leave them out of my Will. That’s something that has to be weighed up. You’ve got to look at well, you know, how did the estrangement come about and sort of make a judgment call as to whether you make an provision for them or whether you don’t make provision – I mean there’s the starting point for the Courts when looking at Family Provision claims is that a testator or testatrix – someone making a Will, is entitled to make a Will exactly how they want and if that means leaving it to the neighbours, well they’re entitled to do that, but that’s why we’ve got the Succession Act and why children can bring about claims, but in the end it’s a matter of going through all of the circumstances, sitting down with someone and providing the advice and in the end, it’s up to someone what they choose to do.
CS Okay. Kyle, thank you very much for your time.
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