In many traditional Chinese families, the family’s wealth, especially the family home and the business, is meant to pass to the sons, often the eldest. Daughters marry into another family. Many families have moved on from this, and many have not. When a will follows tradition and the daughters were raised in Australia, the result can be a family provision claim.
What Australian law does
Australian law respects the freedom to make a will. It does not require equal shares, and a will is not invalid because it favours sons. But in Victoria the court can order provision from the estate for an eligible person if the will fails to make adequate provision for their proper maintenance and support. Daughters, as children of the deceased, are eligible.
The court considers, among other things:
- the size of the estate and the competing claims on it
- each applicant’s financial position, needs and health
- their relationship with the deceased and contributions to the family or its wealth
- the deceased’s reasons, if they are known.
Cultural and religious reasons are taken into account. They do not automatically outweigh the needs of a child left with little from a substantial estate.
Disputes we see
For the will-maker
You can make the choices your values require. Your plan will survive best if you:
Frequently asked questions
Can a daughter contest a will that leaves the estate to her brothers?
She may be able to. In Victoria, children of the deceased are eligible to bring a family provision claim if the will fails to make adequate provision for their proper maintenance and support. The court considers the size of the estate, each applicant’s needs and financial position, their relationship with the deceased and the deceased’s reasons.
Is a will that favours sons invalid in Australia?
No. Australian law respects the freedom to make a will. It does not require equal shares, and a will is not invalid because it favours sons. However, the court can still order provision for a child who was not adequately provided for, so the effect of an unequal will may be changed on a family provision claim.
Will an Australian court respect cultural reasons for leaving the estate to sons?
Cultural and religious reasons are taken into account, but they do not automatically outweigh the needs of a child left with little from a substantial estate. A signed statement of reasons kept with the will helps the court understand the will-maker’s choices.
How can I make a traditional will less vulnerable to challenge?
Make adequate provision for each child, even if the shares are not equal; explain your reasons in a signed statement kept with the will; take advice on lifetime gifts or structures outside the estate and whether a claim can reach them; and talk to your children while you can.
Chua Tan Associates advises families, executors, trustees and their professional advisers on 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 advice. Victorian law unless stated otherwise.
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