A Will is probably the most important document you will ever sign. The power to choose where your wealth is distributed after your die is not just everyone’s fundamental right but responsibility. But it may surprise you to learn that no Will in Australia can ever be fully protected from the possibility of being contested.
Estate disputes are on the rise not just in South Australia but nationwide as the family makeup grows more and more complex.
While the dreaded ‘Will kits’ just don’t cut the mustard.
There are however steps that can be put in place that will go a long way to ensuring your wishes are honoured.
When can a Will be contested?
A Will is most likely to be successfully contested if a person can show they are in financial need and that the deceased should have given them greater consideration.
To measure this, the applicant’s financial situation will be assessed along with their relationship to the deceased.
The court will also examine what moral obligation the deceased had to financially support the applicant.
The question the court will ask is what a “reasonably minded testator” would do in the circumstances.
A contested Will should not be confused with a challenge to a Will.
This is when someone asserts the Will should be declared invalid because it was not executed according to legal requirements.
Who can contest a Will in Australia?
Eligibility to contest a Will differs from state to state. But it holds true that around Australia, a spouse or child of a deceased may contest a Will.
Someone already named as a beneficiary may also contest a Will in a bid to receive a larger share of an estate.
In South Australia, domestic partners and ex-spouses also have the right to contest a Will.
This right is extended to a step child, grandchild, parent and siblings in certain circumstances, such as if they have been financially dependent on the testator.
How to minimise the chances of having your Will contested
The best way to minimise the chances of having someone contest your Will is to ensure you provide for them in the first place.
That doesn’t mean you have to make equal provisions to all of your beneficiaries – just enough to ensure a court would consider your actions reasonable in the circumstances.
Many people believe if an undesirable person is left a small amount in a Will, say $1000, this will preclude them from contesting the Will.
This is not true.
But by making what the court deems a “reasonable provision”, which does not necessarily have to be a generous one, a contest is likely to be averted or fail to succeed.
Explanatory notes with your allocations regarding each beneficiary, taking into account their current and likely future requirements, may also help a court better understand and justify your decisions.
But what if there is a seemingly logical beneficiary you wish to totally exclude?
This is where careful planning needs to take place to ensure some of your biggest assets do not become part of your estate.
Property ownership – a great way to ensure your property or properties land in the hands you desire is to make them a joint owner. In those circumstances, when one owner dies, the property automatically passes to the co-owner rather than becoming part of the deceased estate.
Bank accounts – like property, a joint back account becomes the sole property of a surviving account holder and does not fall into the estate. It is important to note however that in NSW, the concept of “notional estate” disrupts the simple transfer of ownership under these circumstances. It is important to consult a lawyer for estate matters in that jurisdiction.
Gifting – Another savvy way to reduce one’s assets and ensure they are directed appropriately is to gift it while still alive. In most circumstances, this will ensure there is no danger of it being redistributed in the event of a successful contest to a Will. It is however important to be aware that such practice could impact the recipient’s taxation position as well as any government allowances.
Obtain independent legal advice
Many people still die without a Will or one that has been recently updated.
Some think it is not important while others are not prepared to spend the small amount of money to ensure their wishes are honoured after they are gone.
The importance of having an up-to-date Will cannot be overstated and that is particularly true for anyone with considerable assets, big families or unique circumstances where they wish to look after the interests of some family members more so than others.
Contact us today
If any of the above circumstances apply to you, it is absolutely imperative you seek quality advice from a lawyer experienced in dealing with Wills and estate planning.
Knowing that your best interests are in safe hands and your assets will be directed in accordance with your wishes gives great peace of mind.
Contact us today to discuss all of your Will and estate needs.
The information contained on this article is general in nature and does not take into account your personal situation. You should consider whether the information is appropriate to your needs, and where appropriate, seek professional advice from a financial adviser.
Legal matters referred to on this website are of a general nature only and are based on Nicholas Boswell & Co Lawyers’ interpretation of laws existing at the time and should not be relied upon in place of appropriate professional advice. Those laws may change from time to time.