Freedom of the Will?

Eleanor Roosevelt once remarked that ‘with freedom comes responsibility.’ Humans are rightfully pre-occupied with freedom. The ability to choose for oneself unfettered by the constraint of another is a vital foundation for identity, self-expression, and diversity. But what is the place of freedom when it comes to how our assets are distributed when we die? How free is our Will?

For quite some time absolute freedom to choose how your estate was distributed was the norm. The unqualified power to give property away in life or in death was simply the flipside of ownership. Naturally though testators routinely disinherited those who depended upon them, no matter the cruelty or injustice.

This was at least until the law offered a protection, culminating in what is now sections 40-44 of the Succession Act 1981 (Qld). These empower a deceased’s spouse, child or dependant (including de facto, civil partnerships, stepchildren and adopted children) to apply to the Court if adequate provision for their proper maintenance and support has not been made. This application must be brought within 9 months of the deceased’s death.

Generally, the application turns on what constitutes ‘adequate provision’ and ‘proper maintenance and support’. In essence, these sections recognise that familial relationships attract certain responsibilities. The Court will put itself in the position of ‘testator’ and consider what a wise and just person would have done factoring in all the circumstances. This means that in assessing family provision claims context is king; what may be adequate provision in one case, may not be in another.

When it comes to making Wills in Queensland, freedom brings responsibility. If you intend to cut out or reduce the entitlements of your spouse, child or dependant we encourage to seek legal advice about how this might affect your Will.

Noah Smith, Law Student and Paralegal at Zande Law Solicitors, Suite 9, Norwinn Centre, 15 Discovery Drive, North Lakes, is the author of this article, training in the area of Wills and Estates.

The information in this article is merely a guide and is not a full explanation of the law.  This firm cannot take responsibility for any action readers take based on this information.  When making decisions that could affect your legal rights, please contact us for professional advice.

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