Recently it came to light that the late Phillip Seymour Hoffman made the decision not to set up any trust fund for his three children. His reasons being that he did not wish them to grow up feeling any sense of entitlement.
How Far Does Discretion Extend?
Testamentary discretion is an important aspect of succession law. If a person making a valid will cannot be assured that the State will not intervene, questions as the effectiveness of any testamentary instrument inevitably arise. There are, however, some instances where the Supreme Court will intervene and make an order for a provision, or further provision to an eligible applicant.
Sections 40 and 41(1) of the Succession Act 1981 (Qld) list the persons eligible for a family provision order in respect of the estate of a deceased person. These persons include:
- The wife/husband of the deceased;
- The de facto of the deceased;
- Children of the deceased;
- Step-children of the deceased;
- Parents of the deceased, if they were being wholly or substantially maintained or supported by the deceased at the time of their demise; and
- Other dependents of the deceased.
Merely being an eligible person in no way guarantees a successful claim. The eligible person must present to the Court evidence of why a provision should be made. The Court can take a variety of things into consideration, such as;
- The relationship between the applicant and the deceased;
- The character of the applicant as well as the age, physical and mental health status of the applicant;
- Whether the applicant is a dependant, or was being maintained by the deceased;
- The finances of the applicant, both present and predicted future;
- Responsibilities that the deceased had in regards to the applicant; and
- Any other matter the Court considers appropriate.
You have up to 9 months from the date of the deceased passing away to lodge a family provision claim. However it should be noted that an estate may be distributed 6 months after the deceased passing away, if notice of an intended claim has not been provided to the executor. As such it is prudent that you act quickly to avoid any complications.
Due to the circumstantial nature of each individual case, it is best to speak with us directly. Call McNamara & Associates on 1300 574 974.