Law Talks Episode: Fair doesn’t always mean equal in estate planning

Robyn: Good morning and welcome to another edition of Law Talks here on 4CRB. Well, many parents want to be fair to their children and for many that means keeping things equal. But when real life comes into play, different needs, relationships and different levels of support, equal doesn’t always feel fair to everyone.

Today we’re talking about why estates can become such a flashpoint for family conflict and how careful planning can help prevent that. We’re joined by Attwood Marshall’s Lawyers Wills and Estate Senior Associate, Natalie Comerford. Thanks for joining us this morning, Natalie.

Natalie: Thanks for having me, Robyn.

Robyn: Natalie, when people hear the word fair and equal, they often assume they mean the same thing. In estate planning, why is that not always the case?

Natalie: So traditionally, many parents view fair as leaving everything equally to their children. Each child gets the same share and that feels intuitively right. It avoids hard conversations and is often seen as the simplest way to keep the peace.

However, the law doesn’t look at fairness in that way.

So, under Queensland’s succession laws, fair is assessed by reference to need. The court looks at each person’s individual circumstances. Things like financial vulnerability, health issues, disability, dependence on the deceased, or whether one child has received significant support during the parent’s lifetime can be applicable.

So that approach can feel uncomfortable because it doesn’t align with the traditional idea that treating children equally is always the fairest option.

But equal shares can produce very unequal results. One child may be financially secure and independent, while another may have ongoing needs or a genuine reliance on the parent for support. So in estate planning, achieving a fair and equitable outcome means taking those differences into account. It requires careful judgment and thoughtful strategies, such as tailored gifts, testamentary trusts, or clear explanations within the estate plan to balance adequacy, fairness, and the risks of dispute.

Robyn: So Natalie, do you find that families often go into estate planning with very different ideas of what fair looks like?

Natalie: Absolutely. So those views are shaped by personal values and life experiences.

Some people strongly believe that fairness means treating everyone exactly the same, while others focus on who’s helped the family, who’s struggled financially, or who may need support in the future.

There’s no single right emotional answer, but there is a legal one.

The challenge is that personal views sometimes need to be set aside to ensure proper provision is made and to reduce the risk of the estate being contested. So what feels fair to one person can be precisely what leads to a family provision claim if the law’s expectations aren’t met.

So a common example we see is a family with two adult children. One is financially secure, owns their own home, and has a high income. The other has ongoing health issues and is relied on the parents for support. The parents may initially feel that leaving everything equally is the fairest option. However, if the estate is challenged, the court may find that equal treatment did not result in a fair outcome because one child had a far greater level of need. So that’s why open discussion is so important. Talking through these issues and being guided by a lawyer who understands how courts have approached fairness in real cases helps people make informed decisions.

Robyn: So what can go wrong when parents decide to simply split everything equally without looking at the individual circumstances?

Natalie: A lot can go wrong and the courts have dealt with many cases that stem from parents simply deciding to split everything equally. Whether problems arise really depends on the family, the personalities involved and the underlying circumstances.

In some families, equal distribution works perfectly well. In others, it can amplify long-standing tensions or, you know, differences in financial need.

What we most commonly see is conflict after death, siblings disputing the will, questioning the parents’ intentions, or bringing family provision claims if they feel that the outcome didn’t properly account for their situation. Once that happens, matters often escalate into litigation. And litigation is expensive and emotionally draining. Legal costs can significantly reduce the value of the estate. Delays can last for months or even years, and relationships between family members are often permanently fractured. So ironically, parents usually choose an equal split to avoid conflict, but without proper planning and consideration of individual needs, it can have the opposite effect.

Robyn: Yeah, that’s exactly where it ends up. So, Natalie, we hear the term adequate provision often when speaking about wills. What does that actually mean?

Natalie: So adequate provision is one of the most misunderstood concepts we see among clients and that’s because it’s a complicated question with no one-size-fits-all answer.

It always depends on individual circumstances. Adequate provision in the context of the succession law in Queensland is a legal concept governed by the Succession Act 1981. So the section that deals with adequate provision provides that if a person dies, whether with a will or without a will, an adequate provision has not been made for the proper maintenance and support of a beneficiary, which, you know, could be a spouse, a child or another dependent, then the court has discretion to be able to order that further provision be made from the deceased estate.

So determining what is considered adequate by the court is a two-stage process, or they take a two-stage approach. So the first stage asks a threshold question, was the provision, if any, left to the person inadequate for their proper maintenance, education, or advancement in life?

And to answer that, the court looks at the situation as it existed at the time of death. That includes the applicant’s financial position, the size and nature of the estate, the relationships between the applicant and the deceased, and any competing claims of others who also have a legitimate call on the estate.

So if the court decides that provision was inadequate, it moves to the second stage, which is deciding what provision should be made. This is where discretion really comes into play. The court looks at the applicant’s circumstances at the time of the hearing, including their health, age, financial need, lifestyle and any moral obligation the deceased may have had towards them. It also weighs those needs against the size of the estate and the interests of the other beneficiaries.

So in real world terms, adequate provision doesn’t mean equal shares and it doesn’t mean ensuring everyone is happy. It means ensuring that eligible family members are left with proper and reasonable support. Ultimately, it’s a discretionary decision made on specific facts of each case, which is why careful planning is so important.

Robyn: So Natalie, do parents often assume their children will understand their decision?

Natalie: So some parents assume that their children will naturally understand the decision they’ve made in their estate planning, while others expect that misunderstandings or agreements are likely.

So a good case of what can go wrong can be seen in the recent Supreme Court findings in a case called Pezzino versus Pezzino. So this is a 2024 case that dealt with need and not equality.

In short, the deceased left two children, a son and a daughter, and an estate which was valued at around $3.6 million. So the son received approximately a one-eighth share, which I think was around about $450,000. So with the much of the balance was then directed towards the daughter and grandchildren.

So the reason for this is because the deceased feared her son would mismanage money due to gambling and substance abuse issues. So they also raised estrangement as an issue. And despite those concerns, the court looked closely at the son’s real circumstances at the time of her death.

He had minimal assets, significant debt, ongoing health problems, insecure accommodation, and limited earning capacity.

In comparison to the grandchildren who were young, healthy, and had strong future prospects, So after consideration, the court ultimately found the son had not been adequately provided for and increased the son’s share.

This case is just a reminder that, you know, courts will intervene where a will fails to make adequate provision for someone who can demonstrate they’re vulnerable and in need.

Robyn: Natalie, what steps can people take during estate planning to reduce the risk of family conflict after they’re gone?

Natalie: First and foremost, plan carefully and deliberately. Don’t just assume an equal split will automatically be seen as fair. Think about the needs of each family member.

Second, I would say would be communicate your intentions. Having open conversations with your family or at least providing written explanations can help everyone understand the reasoning behind your decisions.

Third, I would say definitely seek professional guidance. Working with an experienced estate planning lawyer ensures your decisions comply with the law, take into account potential family provision claims, and ensure your will is structured in a way that is both fair and defensible.

And finally, I would say review and update your plan regularly. Family circumstances, finances, relationships can all change over time. So, keeping your estate plan current is essential.

Robyn: Natalie, today’s conversation really highlights that good estate planning isn’t just about dividing assets. It’s about understanding family dynamics, legal obligations and doing everything possible to protect relationships after you’ve gone. Thanks for joining us today.

Natalie: Thank you for having me.

Robyn: You’ve been listening to Law Talks here on 4CRB, which you can hear every Friday morning from 9 o’clock.