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Why make a will when it can be contested?

Most people would like to know that their final wishes will be carried out after they pass away. Whether this means ensuring their loved ones are provided for or that a charity close to their heart receives a donation. As our news feeds seem to fill with more and more stories about Wills being contested in court, it’s not uncommon for someone to ask: “What’s the point in having a Will?”.

With the dramatic rise in house prices, the increase in blended families and people’s estates being larger than in the past, there has been a rise in Wills being contested. This is because it’s now more financially beneficial to go through the sometimes complicated and lengthy process of contesting a Will. Despite a rise, the number of Wills being disputed is still fairly small. In fact, the vast majority of estates are dispersed uncontested. This means it’s important to ensure that your final wishes are noted as they will most likely go ahead if you have a legal, viable Will. Even if a Will is contested, the court doesn’t throw it away and start from scratch, your wishes and intentions will be the starting point for any decision making.

Each state and territory have their own categories of people who can contest a Will, but generally it is only spouses/former spouses, children/grandchildren and people dependant on the deceased who are considered eligible. An eligible person who contests a Will must also prove that the deceased had a responsibility to provide adequate support to maintain their lifestyle.

How to make a Will that won’t be contested

While every Will could potentially be contested, there are ways you can ensure your Will is viable and more likely to be carried out to your wishes.

  • Obtain the assistance of a lawyer with an expertise in Wills and Estates to write your Will. They will ensure that there is no confusion and that all the stipulations are taken care of, so your Will can’t be declared invalid.
  • Update your Will as your circumstances change. Getting married, having children, ending a relationship or a change in financial position are all times when you should update your Will.
  • If you have an eligible person that you don’t want included in your Will, add additional notes to explain clearly and precisely why you don’t want them included in your Will. These notes will be taken into consideration if someone does contest the Will.
  • If you have real concerns that your estate will be contested, it’s important to take advice from a lawyer to structure your affairs in a way that ensures minimal assets remain and are dealt with in other ways. This could be through trusts, joint tenancies, life gifts, etc.

Contact Us

Shine Lawyers have legal experts who can assist you to make a Will that ensures that your final wishes are honoured. Contact our Wills and Estates team to help make a difficult and stressful time for your loved ones a little easier.

Written by Shine Lawyers. Last modified: April 15, 2019.

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