Most estate plans that end in court were not badly drafted. The Will was valid. The trust deed was sound. The tax advice was correct. What failed was something no document can fix on its own: the plan did not make sense to the people who had to live with it.
Wealth is not just a balance sheet. In every family it is also a set of feelings, stories and relationships. A technical plan works only when the family can accept it. That is why, before we discuss structures, we start with meaning.
Money scripts: what each generation learned about money
Everyone carries beliefs about money learned in childhood: money is dangerous, money is the answer, money shows who you are, money must be guarded. These “money scripts” are passed down through families, either by repetition or by rebellion. A child raised by a frugal, watchful parent may become equally careful, or may spend freely to prove they are different.
In many Asian migrant families, the founder’s scripts were shaped by scarcity and uncertainty: building something from nothing, often in a new country. Children raised in comfort have different scripts. Neither is wrong, but when they collide over an inheritance, the argument is rarely just about the numbers.
Each family member experiences the wealth differently
The founder. For the person who built the wealth, control often feels like safety. Letting go is hard, not only because of trust in the next generation, but because the business is part of who they are. The founder is often also the glue that holds the family together, which means the family’s stability can depend on one person.
The in-married spouse. A daughter-in-law or son-in-law may have spent decades in the family and raised its next generation, yet still feel like an outsider. Belonging can feel conditional: a binding financial agreement signed before the wedding, access to money only at the discretion of a family trust, spending that needs sign-off, being briefed on decisions rather than consulted. These feelings matter, and they often surface after the founder’s death.
The second generation. The children who watched the wealth being built are often closest to the founder’s values, but they may also carry privilege mixed with guilt, the burden of expectations, and questions about their own identity. Am I valued for myself, or for my role in the business?
The sibling group. Among siblings, an inheritance can become a scoreboard of parental love. An unequal division, or even an equal division that ignores who cared for an ageing parent, can reopen rivalries that began decades earlier.
The third generation. For grandchildren, wealth can feel like the weather: always there, not something they think about. The founder’s story is a family legend rather than a memory. In a large cousin group, responsibility can become diffused, and everyone assumes someone else will look after things. Engaging this generation is about identity and connection, not obligation.
The adviser. Lawyers, accountants and private bankers who become close to a family face their own risk: becoming a character in the family drama. Family members may confide in an adviser, ask them to carry messages, or try to recruit them to a side. We are clear from the outset about who our client is, and we do not act as a secret go-between.
The questions we ask before drafting
Before we debate the structure, we ask the family, or at least the founder, a different set of questions:
- What decision are we actually making?
- What does this decision mean to each person affected by it?
- What is each person afraid of losing: money, status, security, a relationship, a place in the family?
- What does “fair” mean in this family? Equal shares? Reward for contribution? Provision according to need? Recognition of responsibility? Keeping the business or family home together?
- Which concerns are about the present, and which are old history being replayed?
- What process will let people disagree without damaging their relationships?
One question often unlocks the rest: before we debate the structure, what would this outcome communicate to each member of the family? A larger share to the son who runs the business may be sound commercially, but to his sisters it may say “you matter less”. A trust that keeps a daughter-in-law dependent on discretionary distributions may protect the assets, but tell her she was never really family. Once the message is understood, the structure can often be adjusted, or explained, so that it says what the founder really intends.
Why this matters legally: family provision claims
Every Australian state and territory allows certain people to apply to court if a Will (or the intestacy rules) does not make adequate provision for their proper maintenance and support. Who is eligible differs between states, but spouses, former spouses in some cases, children and, in some states, stepchildren, grandchildren and other dependants may be able to claim.
Family provision claims are often driven less by money than by hurt: the sense of being overlooked, judged or excluded. A plan that the family understands, and that reflects a considered view of fairness, is less likely to be challenged. Where unequal treatment is intended, a clear written explanation of the reasons can help the executor and the court understand the decision, although it cannot prevent a claim.
Structure matters too. Assets held in a discretionary trust, in jointly owned property or in superannuation paid under a binding death benefit nomination are usually outside the estate. That can reduce exposure to family provision claims in most states. In New South Wales, however, the court can in some circumstances designate assets outside the estate as notional estate. Moving assets out of the estate to avoid a claim, without addressing the family dynamics, often moves the conflict somewhere else rather than resolving it.
Plans that survive contact with real life
The drafting is the easy part. The real test is whether the plan survives contact with the people who will use the money, run the business and live with the decisions. Conversations about what money means should come before advice about what to do with it, and they should continue after the documents are signed.
For families who are ready, we can facilitate a family meeting with the founder, the next generation and, where appropriate, in-married spouses, so that the plan is explained rather than discovered. Where tensions already exist, a structured, confidential conversation with an independent facilitator can prevent them hardening into a dispute.
Frequently asked questions
Should I tell my children what is in my Will?
There is no legal requirement to do so. But where the Will treats children differently, explaining the reasons while you are alive, sometimes at a facilitated family meeting, often reduces the risk of a dispute later.
Can a letter explaining my reasons stop a family provision claim?
No. It cannot prevent a claim, but a clear explanation can help the executor and the court understand why you made the decisions you did.
Should in-laws be included in family meetings about succession?
It depends on the family and the topic. Including in-married spouses in some conversations can reduce the feeling of being an outsider, while other discussions may be better kept to the founder and the children. A facilitator can help the family decide.
How Chua Tan Associates can help
Chua Tan Associates helps Asian and cross-border families across Australia design estate and trust plans that are both technically sound and workable for the family. Justin Chua is a Nationally Accredited Mediator and Family Dispute Resolution Practitioner, and an Accredited Family Business Advisor, and can facilitate family meetings about succession as well as advise on Wills and trusts. We advise in English, Mandarin and Cantonese.
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Chua Tan Associates acts for families, executors, trustees and their professional advisers in estate planning, estate administration and estate disputes in Australia and across borders. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal or tax advice.
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