The Law And Its Effect On Family Provision

1993 Words8 Pages
In the legal context, the ability to leave property to any person you desire upon death is called testamentary freedom. The concept of testamentary freedom is perhaps the reason why many people contemplate death and attempt to ensure that they meet all the formalities in executing a valid will. It is important to note that testamentary freedom is not a notion that is absolute. Family members of the individual who feel they have an entitlement under the will can bring a claim for contesting a will against the estate. These family provision claims are becoming more common in our society and are arguably undermining the testator’s use of their free will. The courts have implemented the use of mediation as a strategy to assist them in processing these applications. This effective and inexpensive mechanism is a compulsory step in some states before approaching the courts while in other states mediation is highly recommended but not compulsory. Through critical analysis of the law and its effect on family provision claims, it will be depicted that testamentary freedom as a legal right is adversely affected by compulsory mediation.
MEDIATION IN AUSTRALIA
Queensland
In Queensland, the legislation does not stipulate that mediation is compulsory in family provision claims but it is imposed by virtue of the District Court’s practice notes. This practice note states that a draft order to the court must comprise of a ‘dispute resolution plan’. The rationale behind this note is to

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