Common sense dictates that every individual should be able to dispose of their property upon death how they see fit. However, the law in this area is not quite this simple.
While the law generally allows a person to choose how their estate will be distributed, this is subject to conditions including that there must be adequate provision made for certain dependent family members. The governing legislation in this area, the Wills and Succession Act, provides that if a person dies with a will which does not make “adequate provision” for the proper maintenance and support of a family member, the Court may order that proper provision from the estate be made. On hearing such an application for maintenance and support from an estate, the Court must consider a number of factors, which include the nature of the relationship between the applicant and the deceased, the age and health of the applicant, the applicant’s capacity to contribute to their own support, and the deceased’s reasons for making or not making dispositions of property to the applicant.
These provisions of the law serve a few purposes, including to ensure that those persons to whom the deceased has a legal or moral obligation are not left unsupported upon death, as well as to relieve the burden on the public from having to support such dependents. While estate planning, individuals should carefully consider whether any of their family members may be entitled to support as well as whether their will may be vulnerable to challenge for failing to properly address same.