Expectation Management in Estate Planning

Of the many aspects of estate planning that require careful attention, one of the least discussed – and arguably the most emotionally charged – is the management of beneficiaries’ expectations. People often assume, sometimes with great confidence, that they know what a relative intends to leave them. When the Will reveals something different, the consequences can range from family tension to costly litigation.

Effective expectation management is not merely a matter of interpersonal diplomacy. It is an integral part of sound estate planning that can spare families years of grief and legal expense.

Why Expectations and Reality Diverge

The gap between a beneficiary’s expectations and the actual terms of a Will arises from several sources:

• Assumptions based on informal statements or past promises made by the Will-maker
• An inflated belief in the size of the estate or the testator’s personal wealth
• A misunderstanding of how jointly held assets, superannuation, and life insurance interact with the Will
• Ignorance of the testator’s obligations to other dependants
• A sense of entitlement based on caregiving or financial contributions to the testator during their lifetime

In each of these scenarios, the disappointed beneficiary may feel genuinely wronged – even where the Will perfectly reflects the testator’s settled and considered wishes. The risk of challenge increases when expectations are not addressed proactively.

The Cost of Unmanaged Expectations

Disputes over estates are among the most bitter and costly forms of litigation. They pit family members against one another at a time of grief and vulnerability, and they consume estate assets that the deceased intended for the benefit of loved ones. Legal costs alone can amount to tens or even hundreds of thousands of dollars, and the emotional cost of prolonged family conflict is impossible to quantify.

The Succession Act 2023 (SA) provides a mechanism known as a family provision order, which enables certain eligible applicants to seek a larger share of the estate than was provided for in the Will. Eligible applicants include the testator’s spouse, domestic partner, children (including adult children and stepchildren who were part of the testator’s household), and certain other dependants. The court has a wide discretion in assessing what constitutes “adequate provision” in all the circumstances.

Even where a family provision claim ultimately fails, defending it requires resources and causes delays in the administration of the estate. The best defence against such a claim is a Will whose terms are reasonable, properly explained, and – ideally – anticipated by the beneficiaries before the testator’s death.

Communication as a Planning Tool

There is no legal obligation on a Will-maker to disclose the contents of their Will to anyone during their lifetime. Many solicitors advise their clients to keep their testamentary intentions private, to avoid the possibility of undue pressure or unwelcome interference. This is generally sound advice.

Nevertheless, in many family situations, a degree of communication about estate planning intentions can prevent disputes after death. Where a testator intends to treat children unequally – perhaps because one child has already received substantial financial assistance, or because another has contributed significantly to the care of the testator in their final years – explaining the rationale for those decisions (whether by direct conversation or by a carefully worded letter of wishes accompanying the Will) can reduce the sense of grievance that drives litigation.

How to Manage Expectations Before Death

Practical steps to manage beneficiary expectations include:

• Ensuring that the Will is properly drafted and clearly explains complex or potentially controversial provisions
• Preparing a letter of wishes (which is not itself a legal document but can provide important context to executors and beneficiaries)
• Where family provision claims are foreseeable, considering whether the Will makes adequate provision for eligible applicants, and seeking advice on whether any adjustment is warranted
• Avoiding oral promises or representations about testamentary intentions that may give rise to promissory estoppel or constructive trust arguments
• Reviewing the Will regularly to ensure it continues to reflect your intentions as family circumstances change

When Expectations Cannot Be Met

Sometimes a testator’s wishes genuinely cannot provide what a particular person expects or believes they are entitled to. In those circumstances, the best protection is a Will that has been carefully prepared by an experienced estate planning solicitor, supported by evidence of the testator’s testamentary capacity and knowledge and approval of the Will’s contents, and accompanied by contemporaneous notes from the solicitor who took instructions.

Where a family provision claim is clearly foreseeable – for instance, where the Will makes no provision for a dependent adult child – early legal advice on the likely outcome and appropriate defensive strategies is essential.

Want to Find Out More?

Genders and Partners has extensive experience helping South Australians with managing family expectations and estate planning. Whether you are making a new Will, reviewing an existing one, or seeking advice on a specific estate planning concern, our specialist team is here to assist.

When it comes to Wills, Probate, Deceased Estates, asset protection and estate planning in Australia, you can trust the oldest law firm in South Australia – Genders & Partners – to guide you through the tough decisions to create the best solution for your individual needs.

If you have any questions or would like further information, or a quick phone call to discuss, book a timeslot for a free 15-minute phone consultation.

We can help you to protect yourself and your family. We look forward to being of service.

More Estate Planning Resources

• Wills and Estate Planning FAQs
• Challenges to Wills in South Australia
• Top 10 Reasons Why Challenges to Wills Are Becoming More Common
• Bequests to Caregivers
• Seven Surprising Reasons Why Australians Challenge Wills and Estates
• Estate Planning Disasters of the Rich and Famous

All these and many more estate planning topics are available for discussion with the oldest law firm in South Australia.

DISCLAIMER: This article provides general information about expectation management and family provision claims in South Australia under the Succession Act 2023 (SA). It does not constitute legal advice. The law of family provision varies across Australian jurisdictions. Readers should seek specific advice from a qualified South Australian estate planning practitioner in relation to their circumstances.