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Home | Blog | An important reminder in estate planning

Importance of a binding Will

A recent Queensland Court of Appeal decision of Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams [2015] QCA 286 highlights the importance of having a compliant and legally binding Will.

The applicant, John, suffered from Down Syndrome and was omitted from his father’s Will made in 2010. Before his father (“the deceased”) passed away in 2014, he made a subsequent informal Will leaving his youngest son John a one (1) quarter share in his estate. However, the subsequent Will was held to be invalid as it did not meet the requirements of a legally valid will pursuant to the Succession Act 1989 (Qld).

As a result, The Public Trustee of Queensland, acting as John’s litigation guardian, commenced a Family Provision Application claiming further and better provision from the deceased’s estate for John’s maintenance and support. John’s claim was not contested by his older siblings, who were the main beneficiaries under the first Will. The parties reached a settlement agreement but it required the Court’s approval to sanction the agreement between the parties.

At the District Court hearing, John’s claim was dismissed by Justice Everson. Justice Everton stated that he was not satisfied that John’s need was as great as the settlement figure proposed.

The Public Trustee of Queensland appealed Justice Everson’s decision. The Court of Appeal held there was no doubt that John, as a disabled son, had a great need and a moral claim for further and better provision from the deceased’s estate. It was therefore appropriate for the Court to approve the settlement between the parties.

This case illustrates the complex nature of estate planning and administration. If the second Will, which provided sufficiently for the deceased’s disabled son, had been held as valid, there would have been no need for an application to the Court and the emotional stress and substantial legal costs for all parties involved could have been avoided.

For more information on estate planning and to arrange confidential discussion on how we can help you protect your estate and your loved ones from unnecessary stress and cost please contact our Wills and Estates lawyers on (07) 3025 9000. We have 8 offices throughout Queensland in Brisbane, Logan, North Lakes, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns.

More articles on Estate Planning:

Estate Litigation: You will Never Understand it until it happens to you

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When thinking about a lawyer to see in relation to Estate litigation, do not just go and see any lawyer, go and see a lawyer who has personally been through the process and knows and can empathise with what you are going through.

Make A Will to save your loved ones from unnecessary stress later

The importance of developing an effective Succession Plan so that your assets are protected and distributed to the right people according to your wishes.

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