Can anyone challenge your Will?

It is easy for a disgruntled family member to say “I am going to challenge the Will”. However, there are only a few limited ways in which a Will can be challenged. The most common way for a challenge to be made is under family provision legislation. This allows certain people to make a claim for provision out of your estate. Each State and Territory has its own legislation and there are significant differences between the States and Territories.

Can you stop challenges being made?

Unfortunately not. However you can take steps to minimise the likelihood of a claim being made. This can be achieved by consulting a professional adviser, qualified in the area of Wills and Estate Planning.

Who can make a family provision claim?

Each State and Territory has its own definition of who is eligible to make a claim. All recognise that a spouse (married, de facto or same sex) or a child (of any age) is eligible to make a claim. Some States have broader definitions than others.

For example, the definition is very broad in Victoria. There was a recent case where a neighbour was successful in a claim. In NSW there was a recent 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 available to fund an order in favour of an eligible applicant.

In NSW, the court has even broader powers in relation to assets which normally don’t form an asset of you 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.

If someone can make a claim, should you bother making a Will?

Yes, you should definitely make a Will. The courts respect and uphold the right of a person to make a Will, distributing their assets as they see fit. Just because a person is eligible to make a claim does not mean they will be successful. The courts generally will only make orders in favour of eligible applicants if the applicant can prove they have a genuine need, and that the deceased has failed to make proper provision for the applicant either during the deceased’s lifetime, or by their Will. In some cases, the poor conduct of an eligible applicant may have been such as to entitle the Willmaker to disinherit the otherwise eligible applicant.

What can you do to minimise the chances of a claim being made, or being successful?

An adviser qualified in the area of Wills and Estate Planning can assist in planning for the possibility of family provision claims. 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.

If you would like to find out more, or if you would like to make a Will or update an existing one, speak to our financial adviser for more information.

 *This article is for general information purposes only. It is not intended as financial or investment advice and should not be construed or relied on as such. Before making any commitment of a financial nature you should seek advice from a qualified and registered financial or investment adviser.

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