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Clause making inheritance gift conditional deemed ‘void’ in NSW Wills case

Wills are documents designed to make it easier for loved ones to navigate the tricky business of dividing up the Estate of their dearly departed.

They provide instructions for the distribution of a person’s Estate following their death, and who should execute these instructions: the executor.

For those who wish to Contest a Will, there are several ways to do this including through mediation and in the courts.

However, sometimes there can be clauses within a Will which forbid beneficiaries from contesting the distribution of the Estate.

These can make an already complex situation even more so.

What happens when the instructions within a Will prevent loved ones from seeking what they feel is a more adequate share of the Estate?

A recent Inheritance Dispute before the NSW Supreme Court dealt with this very problem.

In this case, a father had made several gifts to his son in his Will, including property and other belongings.

There was a condition attached to these, however: if the son made any further claim on his father’s Estate, he would forfeit these, his only inheritance.

Drawing on precedent, the judge hearing the case determined that this condition was void, as it was “against public policy”.

This is because it would have prevented the son from making a claim based on Family Provision.

A previous case referred to by the judge had seen Family Provision claims classified as not just being of benefit to individuals, but to the wider community as well.

Certain family members and loved ones can make such claims if they feel they have not received adequate provision for their maintenance or advancement in life.

For instance, if a child has received only a relatively small amount from the distribution of their late parent’s Estate, they could Contest the Will to seek a share more fitting for their state of need.

Without this provision, they could indeed become more dependent on the community, as well as other family members.

Thus, in addition to being concerned with private policy, the judge in the prior case determined that Family Provision claims serve public policy.

In the case of the son whose father appended a strict condition to his inheritance gifts, the same judgement was given.

The judge decided that the condition prevented the son from seeking to increase his provision from his father’s Estate, something he should be free to do in the form of a Family Provision claim.

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Contesting Wills
 — Gerard Malouf & Partners

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