Peter Townsend
Peter Townsend from Townsend Lawyers briefly explains how family provision waivers work. Often the waiver seeks to stop an ex-spouse trying to access more assets or actions. This is an excerpt from an estate planning presentation to financial advisers.
The provision is most often used when divorced couples reach a property settlement in the Family Court and want to ensure that their ex-spouse does not come back for more by making a family provision claim. However it can be used in other contexts as well.
Section 95 of the Succession Act requires that the Supreme Court approve of any release by a person of the person’s rights to apply for a family provision order.
So a person can release their entitlement to make a family provision claim provided the court approves.
Generally the Court will provide approval based on the affidavits of the parties provided the judge in chambers accepts the fundamental fairness of the deal. If in doubt they will ask for the matter to be heard in open court and or for more evidence of the arrangement and the parties’ circumstances to be provided before making a decision.
It would be open to a couple to seek such approval for their mutual wills agreement thereby preventing either of them from making a family provision claim after the death of the first in order to circumvent the agreement.
It would also be open for the surviving spouse to have their second spouse make an application for the approval for the limited amount going to the second spouse. In that case, the court would want to be very sure that the second spouse was not being unfairly treated and knew exactly what they were doing.
By Peter Townsend, Principal
You must be logged in to post or view comments.