Why bother making a Will?

An aggrieved family member who has been left out of a Will often decides to make an application for a Family Provision Order.  A Court may make a Family Provision Order if it is satisfied that the applicant is an eligible person and that, considering all the circumstances, the deceased person has not made adequate provision in the Will for the applicant.  But the Court does not exercise the discretion to make an order lightly as can be seen in a recent decision by Justice Hallen in the Supreme Court of New South Wales.
In this case, the deceased died on 11 December 2014 aged 85.  She made a Will on 16 June 1998 appointing her two daughters as executors and left the whole of her estate to her husband and in the event he did not, then her property at Kingsgrove to one of her daughters and the balance of her estate evenly between her two daughters.
Her husband had pre-deceased her and at the date of her death she owned her property at Kingsgrove and had modest savings.  The practical effect of the will is that one of her daughters would not receive anything significant out of the estate while the other received almost everything.
The deceased had written into her Will a clause which explained why she had left her property to one daughter. In short, the clause stated that the deceased and her husband had assisted the other daughter financially during their lifetime and that such support was continuing into the ‘foreseeable future’.
In making his decision to dismiss the applicants claim for a Family Provision Order the judge said:
“Because an applicant for provision has been a dutiful child of the deceased, does not, necessarily, mean that an order for provision, or further provision, out of the deceased’s estate ought to be made. Similarly, unequal distribution of a deceased’s estate is not sufficient, of itself, to warrant disturbing a testamentary disposition.”
The Judge considered other factors such as the practical effect of making a Family Provision Order which would have resulted in the first daughter being kicked out of a home which she had lived in and shared for many years with her mother, while the applicant already had a home for herself to live in.
The will was upheld.