What are Forced Heirship Rules?

The term ‘Forced Heirship Rules’ refers to laws requiring that a set part of a deceased Estate is given to particular heirs.

These laws mainly exist in Asian countries where the law states that a set portion of the deceased’s Estate is to go to the deceased’s wife and/or children. The laws surrounding ‘Forced Heirship Rules’ differ depending on the country, but have the commonality of denying the deceased the ability to dispose of their Estate in the manner they think fit.

There are no Forced Heirship Rules in Australia. If there were it would mean that when drafting your Will you would be required to leave a set portion of your Estate to the heirs as set out in the relevant legislation. This could mean that 50% of your Estate automatically goes to your wife, 25% is divided between your children with you able to choose where the remaining 25% will be distributed.

Instead of Forced Heirship Rules, Australian States have legislation that allows eligible people, who believe they have been left out of someone’s Will, to make a Court application for provision to be made for them out of the deceased’s Estate.

In essence, in Australia, the right to inherit from a deceased Estate is not automatic. Instead, people who make a claim on a deceased Estate need to show the Court that they have been left without adequate provision for their proper maintenance, education or advancement in life.

They are also required to provide evidence to the Court about the nature and duration of their relationship with the deceased, their financial resources and their character and conduct before and after the death of the deceased. In addition, the Court will give weight to statements made by the deceased whilst they were alive about the deceased’s intentions in relation to the distribution of their Estate.

In Australia, there is no automatic right of inheriting from your mother, father or other close relative because of testamentary discretion. Testamentary discretion means that you can choose who will inherit from your Estate regardless of family relationships. Your Will can be challenged but it can only be challenged in the Court and the person challenging your Will has to prove to the Court that the deceased had a moral obligation to provide for you in their Will.

It is always prudent to seek expert legal advice on Estate Planning and your Will to ensure that you minimise the risk of a Family Provision Claim being made on your Estate. In some instances this can involve you explaining in your Will why you have excluded certain family members.

If you need advice on drafting your Will, Estate Planning or how to minimise the risk of a Family Provision Claim being made on your Estate, call  Barwick Boitano today on (02) 9630 0444 or email on fjb@bblawyers.com for an appointment.

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