I have designed this questionnaire for anyone planning to make or update their will in Western Australia. It is essential for people with adult children or complex family arrangements. Still, it is valuable for all testators who want to minimise the risk of their will being challenged after their death.
Recent cases in the Supreme Court of Western Australia show that challenges to wills under the Family Provision Act 1972 are increasingly common, often leading to costly legal battles that can significantly deplete estates and break family relationships. A testator could have avoided many of these challenges with better planning and understanding of potential issues.
This questionnaire will help you:
Identify potential claimants under the Family Provision Act
Consider the specific needs of your children
Understand where challenges might arise
Guide discussions with your solicitor
Document your reasoning for the decisions you make
While completing this questionnaire won't guarantee your children and other financial dependents won't challenge your will, it will help you make informed decisions about the distribution of your estate and provide a framework for discussing your intentions with your solicitor.
The questions are arranged in order of importance, starting with critical issues that courts consistently consider when evaluating Family Provision claims.
Critical Priority
1. Who can claim under the Family Provision Act?
2. Do any of your children have special needs, health issues or disabilities affecting their ability to support themselves?
3. What is the total value of your estate and what are the main assets?
4. Have you provided significant financial assistance to any of your children during your lifetime?
5. Are any of your children or others financially dependent on you?
Financial Circumstances
6. What is the current financial position of each of your intended beneficiaries?
7. Do any of your children have significantly different earning capacities?
8. Are there significant disparities in the financial resources available to each of your children?
9. Have you made any promises to your children about their inheritance?
10. Do any of your children have dependents with special needs?
Relationship
11. Are you estranged from any of your children? If so, what are the reasons?
12. Have any of your children cared for you or assisted you?
13. Have there been any family disputes that might affect your decisions?
14. Have you discussed your intended distribution with your spouse and children?
15. Are there any children you intend to exclude or treat differently?
Practical Considerations
16. When did you last review your will?
17. Have there been any significant changes in family circumstances since your last will?
18. Have you documented your reasons for any unequal treatment of beneficiaries?
19. Do you have records of financial assistance already provided to your children?
20. Have you considered making gifts during your lifetime instead of through your will?
Future Planning
21. Are any of your intended beneficiaries likely to face future financial challenges?
22. Have you considered how your estate might be used to provide ongoing support for vulnerable children?
23. Is your estate likely to significantly change in value?
24. Have you considered the tax implications of your proposed estate distribution?
25. Would a trust structure be more appropriate than direct gifts for beneficiaries?
Documentation
26. Have you kept records of why you're making specific decisions about distribution?
27. Have you documented any loans made to your children?
28. Have you recorded any significant gifts already made to your children?
29. Do you have evidence of any agreements made with your children about inheritance?
30. Have you documented any family circumstances that influence your decisions?
You should review these questions with your solicitor to ensure your will adequately addresses potential claims while achieving your testamentary intentions.
Call us on 04211 45637 for advice.
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