Protecting your Will against challenges

Everyone understands the importance of a Will, but how do you ensure your wishes are carried out when you’re no longer around? Who can contest your Will and what are their chances of success?

Maud’s four children hadn’t visited in years so she left her fortune to an obscure charity for wayward arachnids. An extreme example, certainly, yet many would argue that Maud’s wish to bequeath her estate to spiders should be respected.

Fundamentally, Maud’s situation is common: lonely elderly person, charity, disgruntled family members. Who could challenge Maud’s Will and under what circumstances?

Firstly, it’s important to note that the law varies from state to state and Family Provision Applications are assessed by the relevant courts.

Eligible applicants may contest Maud’s Will if they believe she did not provide adequately for them.

Claims against Maud’s Will may be supported if:

• made within 12 months of Maud’s death,

• Maud was incapacitated due to illness, dementia, Alzheimer’s or medication,

• the Home for Arachnids assisted Maud to draft her Will,

• Maud made her Will under undue pressure,

• claimants prove that they have not been adequately provisioned.

When George became ill his daughter Sarah nursed him in her home. George left his entire estate to Sarah, overlooking his son, Tony. Should Tony contest his father’s Will?

The Family Provision Act (NSW) refutes that all children should be treated equally. In fact, in 2009, it ruled that, “... (equality between a testator’s children) is not a position from which one can begin ...”

Which means Tony must prove his entitlement.

Yet what if George had omitted Tony for Disentitling Conduct – a provision that reduces or nullifies entitlement to a share in an estate for a specific reason, e.g. estrangement, violence, threats or addictions?

The courts may rule that George had a right to disentitle Tony. Conversely, it may weigh Tony’s right against Sarah’s and decide differently.

To limit the chances of your Will being challenged, you should:

• obtain professional advice – your financial adviser can refer you to a qualified estate planner,

• consider the specific needs of spouses, children and other dependants including health, disability and earning capacity,

• review your Will at least every five years,

• engage a solicitor or public trustee as executor to ensure neutrality.

The courts found that George’s son had a history of violence towards his father and upheld George’s Will.

Maud’s children claim the arachnid home is not a registered charity and is unable to inherit Maud’s estate, but the spiders have excellent representation. The case remains before the courts and the lawyers remain positive.

Please contact us on 1300 667 529 if you would like to discuss.