How can I avoid a Family Provision Application being made against my estate?
Unfortunately, it is quite difficult to prevent a Family Provision Application being made against an estate.
The usual advice given to clients wishing to avoid a Family Provision Application is to leave an estate worth very little. The reason for this is that applicants are most unlikely to bring a claim against an estate from which there is very little chance of receiving a significant award. Small estates discourage Family Provision Applications.
However, the process of person giving away assets is also fraught with difficulty.
Cases are littered with examples of testators who have given away assets that they could ill afford to give away and to people who, despite promises, did not look after the testator once the assets were transferred.
Also, such gifts can often give rise to other different litigation, usually alleging that the testator did not have capacity, or was unduly influenced or that the transaction was unconscionable.
Another strategy is to determine what a court might be likely to award a potential applicant and to make a similar gift in the will. The difficulty with this approach is that the size of the estate and the circumstances of the potential applicant may change and even if the testator is aware of this, it creates the need to continually monitor and change the will to reflect these changes.