No!

Some of you will have heard of the retired farmer who left approximately $2m, in his Will, to his two sheep dogs. The case received quite a bit of publicity and, not surprisingly, the Will was challenged in Court. The Court set aside the provision for the dogs.

A lot of people, when discussing their Wills, are unaware of the existence of the Family Protection Act 1955 which provides that we all owe a moral duty to our spouse and our children to make "adequate provision for their proper maintenance and support." Most people want to leave their assets to their spouse and children. However some, for very good reason, wish to exclude either their spouse or one or more of their children. In these circumstances it is very important people take proper legal advice prior to the preparation of their Will as the Courts have been more and more inclined to set aside Wills that exclude family members.

You may think that because one or more of your children is already financially well off that you need not provide for them. However the words "proper maintenance and support" have been held not simply to mean financial support but also to recognise a child’s right to recognition as a member of the deceased person’s family. Accordingly, there have recently been quite bizarre situations where children who have been left out of a parent’s Will, who have no need for financial support (having in one case assets of over $1m), have nevertheless, been able to challenge and obtain further provision from their parent’s Will.

The Family Protection Act has been in force now for some forty-five years without any substantial amendment and it is certainly questionable whether the Act is still as relevant in today’s society as it was when it was first enacted. However until the Act is amended people should take very careful advice prior to leaving a spouse or one or more children out of their Will. Unless the Will is drafted very carefully there is every likelihood that a Court will set it aside.

All of our solicitors involved in the preparation and drafting of Wills are very familiar with the Family Protection Act. They are able to advise you about the possibility of your intended Will being challenged. In the event that you are involved in a dispute in relation to a Will, our family team solicitors are able to assist you with the Court process.