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 even 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 the number of Wills being contested. Despite that rise, the number of Wills being disputed is still fairly small. The vast majority of estates are dispersed uncontested. This means it’s important to ensure that your final wishes are properly recorded as your estate will most likely be distributed following them if you have a legal, valid 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.
Why would someone contest a Will?
Although you may think that it is unfair that people can contest a Will if you have clearly laid out your wishes, there are some good reasons for a person to challenge a Will, such as:
- if they have good reason to believe you were forced into making a Will that doesn't align with your wishes,
- if you were unable to make a legal decision at the time due to dementia or another impairment,
- or if a family member believes that you had a moral obligation to provide for them and they have not been adequately provided for in your Will.
Claims for provision can be made for a share or a larger share of the estate by your state's relevant Court. The Court will decide whether the Will adequately provides for the applicant given their current circumstances. If the Will does not, and the person is eligible, the Court will then determine what is adequate and this is based on several factors including;
- the relationship between the deceased and the applicant,
- whether the applicant has any physical, intellectual or mental disabilities,
- the financial position of the applicant,
- whether another person can support the applicant,
- and any other matter the court may consider relevant.
When can a Will be contested?
Each state and territory has its own categories of people who can contest a Will, but generally only the following will be considered eligible:
- spouses/former spouses,
- and people financially dependent on the deceased at the time of their death.
Eligible people who contest a Will must also prove that the deceased had a responsibility to provide adequate support to them and must have a financial need for the provision.
Who is eligible to contest a Will?
Who is eligible to contest a Will varies from state-to-state. For instance, a stepchild in Queensland or Tasmania can contest a Will however in NSW a stepchild can only contest a Will if they were dependent on the deceased at some point during their lifetime and a member of their household at that or any other time. In Queensland, to contest a Will you must have been in a de-facto relationship for more than two years with the deceased in order to contest their Will. In Tasmania, a divorced spouse may also contest a Will if they were receiving financial support from the deceased.
In Victoria, applicants are assessed under a two-tier system. Under this system, a child (biological or adopted) who is under 18 years old - or between 18-25 years old if they are a full-time student - will fall under the first tier as will a spouse (de-facto, married or even ex-spouse where property settlement matters are affected). Adult children or stepchildren must demonstrate the degree to which they are unable to adequately provide for their own maintenance and support. The second tier in Victoria includes grandchildren, registered caring partners and members of the household at the time the deceased passed. For the Court to make an order for provision for 2nd tier applicants they must show they were wholly or partly dependent on the deceased for proper maintenance and support at the time of their death.
If would like to make a start on creating a legally valid Will, please reach out to Shine Lawyers. Our Wills and Estates team practice in Queensland, New South Wales, Victoria and Tasmania and can help you to make a difficult and stressful time for your loved ones a little easier.
How to make a Will that cannot be contested?
While every Will could potentially be contested, there are ways you can ensure your Will is valid. A legally valid Will is less likely to be contested so your final wishes are far more likely to be carried out exactly as you specify. To create a legally valid will you should:
- Obtain the assistance of a lawyer with 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 consider updating 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 in your estate and can be dealt with in other ways. This could be through trusts, joint tenancies, life gifts, etc.
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Written by Rebecca O'Toole. Last modified: September 25, 2020.