Can your Will be challenged?

It is easy for a disgruntled family member to say, “I’m going to challenge the Will”. However, the reality is there are limited ways to challenge the contents of a Will.  

Can anyone challenge your Will?
The most common way for a challenge to be made is under family provision legislation. This allows certain people to make a claim on your estate. Each state and territory has its own legislation with significant differences. All states recognise that a spouse (married, de facto, or same sex) or a child (of any age) is eligible to make a claim.

Some Australian states have broader definitions than others. For example, the definition is very broad in Victoria where a neighbour was successful in a claim. In NSW there was a case where a son who lived in Victoria was able to make a claim in NSW against the estate of his mother who lived and died in Malta. He was able to make the claim because his mother owned real estate in NSW.

What assets are subject to a claim?
Any asset that forms part of your estate is subject to a claim. In NSW, the court has even broader powers in relation to assets which normally don’t form an asset of your estate. These include jointly owned assets as well as superannuation. The court has power to deem such assets as ‘notional estate’ and use them to provide a benefit to a successful eligible person.

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If someone can make a claim then why should I make a Will?
Everyone needs a Will. The courts respect and uphold the right of a person to make a Will, distributing their assets as they’ve instructed. Just because a person is eligible to make a claim doesn’t mean they will be successful. The courts will generally only favour applicants who can prove they have a genuine need, and that the deceased has failed to provide for them either during the deceased’s lifetime, or through their Will. In some cases, the poor conduct of an applicant may be the reason why the Willmaker wishes to disinherit them.

What can you do to minimise the chances of a claim being made or being successful?
Unfortunately, you can’t stop challenges from being made, however, you can take steps to minimise the likelihood of a claim being made. A professional qualified in the area of Wills and estate planning can help you plan for the possibility of a claim. In some States or Territories this may involve a review of the way in which you have your asset ownership structured. Courts in all states and territories are able to accept into evidence statements from the deceased.

An estate planning specialist can also assist in preparing a statement (or affidavit) whereby the Willmaker (after their death) can give their evidence to the court. This may include details of the provision which the Willmaker may already have made in favour of the potential claimant, and also details of the conduct or behaviour of the potential claimant which the Willmaker believes is sufficient to justify excluding the potential claimant from inheriting a part of the estate.

Top five tips for preparing a Will

  1. Get professional advice.
    Consult an estate planner, trustee company or solicitor who specialises in estate planning.

  2. Choice of executor is vital.
    An important role of the executor is to communicate with the beneficiaries and also distribute the assets according to your wishes (as outlined in your Will). Ensure your executor is someone you can trust and will be reliable in carrying out your wishes.

  3. Once prepared, your Will should be kept in a safe place.
    You should inform your executor(s) or family members where you keep your original Will.

  4. Your Will should be reviewed whenever your personal circumstances or structure of asset ownership change.
    For example, in South Australia, marriage revokes a Will unless that Will was prepared in contemplation of marriage.

  5. When including an organisation in your Will, it is essential to get the name of the organisation correct.
    If an organisation is incorrectly described in your Will, it is possible that it may end up not receiving the benefit or there may be significant legal costs incurred before it does.

Do you have a Will in place? What are your thoughts on family members challenging Wills? Join our conversation below…