With increasing individual wealth and the aging population, there are likely to be more challenges to Wills.
Can you make your Will “challenge proof”? Unfortunately, the short answer is “No” but good estate planning can minimise the risks.
There are two ways to challenge a Will. The first is to challenge the validity of the Will itself on the basis that it was not properly executed or perhaps the deceased did not have the necessary mental capacity to make the Will or was subjected to undue influence at the time of making the Will. The risk of such challenges can be reduced by having your Will professionally prepared by an experienced lawyer who will take steps to avoid any uncertainty about the validity of the Will such as:
- ensuring that the Will accurately expresses your wishes;
- ensuring that the Will is properly prepared and executed; and
- (in some cases) obtaining a medical certificate as to testamentary capacity.
The second way to challenge a Will is to make a “family provision” claim. This type of claim assumes that the Will is valid, but asks the Court to effectively change the terms of the Will. A family provision claim can be made by a limited range of people including:
- a spouse or de facto partner;
- children and stepchildren; and
- financial dependants of the deceased.
Good estate planning should include a consideration of who may be able to make a family provision claim against your estate and ensuring that they are properly provided for in the Will. In some cases, it may be possible to structure your affairs so that certain assets will not form part of your estate and therefore will not be exposed to a family provision claim. It may also be a good idea to tell your family what is in your Will rather than leave a Will containing nasty surprises. At least you can explain your reasons for making your Will as you have.
When a Will is challenged, some of the consequences are family disputes (often irreparable), additional legal fees and unnecessary delays in the winding up of the estate.
Good advice from an experienced estate planning lawyer in consultation with your financial advisers can minimise the risks.
This article was contributed by David Whitehill, a Partner at Clewett Lawyers. With degrees in Commerce and Law and over 20 years’ experience in both commercial law and estate planning, David provides clients with well qualified advice in both commercial matters and estate planning. Clewett Lawyers are a progressive law firm with the industry know-how and experience to support a varied client base, from a small business wanting to expand, to a private client requiring assistance with a family or personal injury matter, to a party to a business or property transaction.