A claim can be made under the Inheritance (Family Provision) Act, 1972 (“the Act”) (known as an Inheritance Claim) on the basis that the Will maker failed to provide for a family member in their Will where they had a moral obligation to do so.

We are often asked what can be done to avoid an Inheritance Claim. There is a common misconception that if you put reasons in your Will as to why you do not want a family member to inherit from you, this will mean they cannot make a claim.* Likewise, some people believe that if you leave such a person a small gift, say $100, then this will mean they can’t claim more.  This is not the case – if you have a family member who is entitled to make a claim (see “Who Can Make a Deceased Estate Inheritance Claim“) then even if you leave them a “fair” or “even” share of your estate, they have the right to claim more. The real question is: will they have a claim that is worth pursuing?

*Putting reasons for not leaving a gift will negate an argument that the Will maker simply forgot about the potential beneficiary but it can also have the unwanted consequence of an argument that the reasons were incorrect or unfounded.

You cannot take away a person’s statutory right to make an Inheritance Claim. What you can do is control what is in your estate when you die. Put simply, if there is nothing to fight over, then there a claim will be met with an empty purse.

A person’s estate consists of assets held in their own name at the time of their death. It is important to remember that:

  1. Superannuation is generally not part of a deceased estate; and
  2. Jointly owned assets will not form part of an estate, as they will pass to the surviving owner by the rule of survivorship.

How you deal with your superannuation and death benefits is very much dependent on your personal circumstances. Generally, if you do not want a person to benefit upon your death, this can be dealt with by making a binding death nomination with your superannuation fund. Upon your death (subject to each fund’s rules and any appeal rights of potential beneficiaries) any amounts due will be paid directly to the beneficiaries you have nominated, rather than forming part of the estate.

Jointly owned assets are subject to the “Rule of Survivorship”. When one of the joint owners dies, the surviving joint owner(s) automatically take ownership of the asset. Therefore, jointly owned assets never form part of an estate, at least not until the last surviving owner has died.  See also “Things to Keep in Mind When Making a Will“.

For further information (or if you need to make a Will) please contact Alex Boardman on 8362 6400 or email Alex BoardmanJoin our mailing list to receive updates and advice on current issues.