Wills – they’re not as simple as you might think
A recent court decision in Queensland to override a man’s will that discriminated against Muslims prompts an interesting question – can a will exclude a person just because of their religion, ethnicity, sexuality or health?
The Queensland case involved a childless unmarried man who left his fortune to needy orphans – so long as they weren’t Muslim, drug addicts or disabled. For ten years the trust tried to fulfill his wishes, but charities refused to accept donations as they were discriminatory.
The trust certainly couldn’t advertise for beneficiaries saying “no Muslims, druggies or disabled need apply”.
In April the Queensland Supreme Court overrode the discriminatory provisions in the will so the money could at last get to the orphans.
Normally using grounds such as race, religion or disability to discriminate against someone is illegal. The Queensland decision doesn’t change anything in NSW where it is perfectly legal to exclude someone from a will on any grounds the testator (will maker) wants. A testator can cut a child or spouse out of their will and give the lot to just one child or a secret lover.
But, and it’s a big but, within 12 months of death the will can be challenged by an “eligible person” such as a son, daughter or spouse. Stacks Law Firm’s expert on contested wills, Joshua Crowther, said courts have extreme discretion in making orders regarding claims on a contested will.
“The Succession Act requires the court to take into consideration the needs of a claimant such as their financial situation, age and health,” he said.
“Things can get complicated with wills involving ‘blended’ families with children from several different partners and ex-partners.”
Joshua says it’s really important to get proper legal advice on wills. If you don’t make a will your spouse can get the lot. While partners in blended families might promise each other they will leave the inheritance equally among the children, what if the spouse remarries and has children? Your kids could miss out. If there’s no family, the state could get the lot.
Do-it-yourself wills can have gaping loopholes leaving them open to challenges from people you don’t want to benefit from your death.
Mr Crowther said the more complicated the will, the larger the family and the more inheritance involved, the more important it was to get legal advice on drawing up a will so the inheritance goes exactly where you intend it to go.
A more watertight will that also has tax advantages is the testamentary trust. It administers the inheritance after death and can help with people who need ongoing care or supervision.
For more information, please see Can you put conditions in a will? Laws around conditional gifts and bequests in NSW.