A Willmaker may leave his or her estate to whomever they please. However, where there is no Will or where the Will fails to make adequate and proper provision for the maintenance and support of a dependent of the Willmaker, the Court has the power upon application, to alter the provisions of an otherwise perfectly ordinary and legitimate Will and order a payment of maintenance be made to the dependant/applicant from the estate.
The Court looks at two (2) matters namely:
- Deciding whether the Applicant has been left without adequate provision for his or her proper maintenance and support; and
- If the answer to the first question is yes, what provision ought to be made to ensure the Applicant was properly provided for.
The Court only considers the needs of the dependent claiming. The Court has no discretion to vary a Will based on principles of fairness, justice, good conduct, honest worth and/or moral claim. As a result, ensuring an adequate provision is made for your dependents before your death or via your Will or ensuring that your estate is extremely small so an unwanted claimant can get nothing are important considerations.
Often in Family Provision Applications applications the Court will order that the costs of all parties in the dispute are to be paid out of the estate. Such an order can result in a significant reduction in the size of the estate and significantly reduce the amounts available to the beneficiaries. It is always wise, therefore, to err on the side of caution and to make appropriate provisions either in your Will or through insurance or other mechanisms outside of your Will, to provide for ex-spouses and children of previous relationships, particularly where maintenance is still being paid
For people who have married for a second time, it is important that clear arrangements are established to deal with the often conflicting obligations to children from the prior marriage and to the current spouse and/or children. A poorly considered Will or Estate Plan may encourage an ex-spouse or children of a previous marriage to bring a Testator's Family Maintenance Action against the estate. |
