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Legal Articles


Is Your Will Watertight?


Twenty years ago you had an argument with teenage daughter Mary and she left home to join a motorcycle gang. The two of you have never spoken since. Son John, the apple of your eye, married the nice girl he met at university but she has turned out to be the daughter-in-law from hell and will not let you see the grandchildren. John has stopped visiting you to “keep the peace”.


You feel completely disillusioned with both Mary and John and decide to cut them out of your will. You elect to leave everything in trust for daughter Jane, who was born severely disabled and has spent her whole life in a government-funded institution. Why does your family solicitor sigh heavily and roll his eyes when you give him your new will instructions and you say to him: “Make sure my will is watertight and no one can challenge it?”


The legal rights of close family members to challenge a will are contained in the Family Protection Act 1955. Further extensive rights, particularly for spouses and de facto partners, are contained in the Property (Relationships) Act 1976. If you have provided services for someone relying on their promise that they will make provision for you in their will; the Law Reform (Testamentary Promises) Act 1949 gives you a remedy. In this article I will deal only with some typical Family Protection Act situations involving the children of a deceased parent.


Ascertaining “moral duty” is the keystone for claims under the Family Protection Act 1955. When a will is challenged, the judge hearing the case considers whether the testator (the person who has died and who made the will) had a moral duty to make provision, or better provision, in the will for the family member who has lodged a claim. The judge asks what provision should a “wise and just” testator have made in the will? The judge does not ask what a “loving testator” would have done. We all know love can be irrational and blind! The Court has to enter into the risky area of making value judgments, taking into account the often-changing mores and expectations of the society in which we live. Cases today may well be decided differently from those with apparently similar facts, which were heard only twenty years ago.


The law is very clear that there is no legal obligation for testators to treat their children equally. However, it is true to say that the greater the inequality of treatment the more likely it is that claims will be made and that they may be successful to some extent. The Court, for example, might decide that a wise and just testator should not have cut both Mary and John completely out of the will. It is not unusual for parents to fall out with a child at some difficult stage of their life. A just testator would not act out of anger or disappointment and ignore the needs of a child. Whether the parent or child had made any attempts to heal the rift would also be relevant along with the financial circumstances of the child (and any grandchildren) at the time of the testator’s death.


If Mary and John challenge the bequest to their disabled sister Jane, the Court is likely to look at the extent to which the bequest will make a real difference to Jane’s life. In particular, whether it would assist her to live independently in the community. No matter how deserving the needs of a disabled child, it would be unwise to completely ignore the needs of the other children. Setting up a specific family trust for Jane, some years before the parents’ death, might be a better option than relying on the provisions in a will.


It is important that if your will treats your children in a significantly unequal manner, or if you foresee that it might cause some upset, that you have your reasons clearly recorded. Your executor should be able to show that you had properly considered the situation and needs of all your children when you made your will. Carefully explain your reasons and assumptions to your solicitor and have them written down. Sometimes putting a statement into the will itself or having a separate document filed away with your will, to be produced in the event of a challenge, is a good idea.


It is probably impossible for a lawyer to guarantee that a will is watertight. Recent court decisions do suggest that it is becoming harder for financially comfortable adult children to successfully challenge a will. However, showing more generosity to out of favour children than you feel they really deserve, may remain the safest way to ensure that the final legacy you leave to your family is not an expensive and destructive family protection claim.




Disclaimer: The information contained in this article is of a general and summarised nature only. It should not be used as a substitute for obtaining personal legal advice.


© Terry Carson 2008

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