Why should I make a Will when it’s going to get challenged anyway?

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 If someone dies without leaving a Will, they die intestate. The Court will generally approve Letters of Administration to immediate family – beginning with spouse, then children, and so on – to administer the estate. Should it be found that there aren’t any appropriate relatives then the function will be passed to the NSW Trustee & Guardian.

Either way, the estate will be passed on to relatives in the following order – Eligible Persons, as defined by the Succession Act 2006 (NSW) and subsequent amendments:

  • Spouse
  • Children
  • Parents
  • Brothers and sisters
  • Grandparents
  • Aunts and uncles
  • First cousins

If none of the above exist, and there is no Will, then the estate will be passed to the State, net of funeral costs, payment of debts, and with outstanding costs covered.

That is, if no Will is left, there is a defined protocol as to how an estate is directed. If it is desired that other beneficiaries such as a close lifelong friend, a favourite charity, or a distant, but emotionally close and supportive relative should receive some portion, then a valid and clearly constructed Will is vital.

Challenge or contest?

These terms are often used interchangeably, and while there are points of commonality, the two terms refer to different things.

To challenge a Will is to question its validity – to suggest that it should be struck off on various grounds such as:

  • The person making the Will lacked the proper mental (testamentary) capacity to do so
  • The Will was made under undue influence
  • There is fraud or forgery involved
  • The Will is not witnessed or signed properly

On the other hand, to contest a Will is to make a Statement of Claim that the Will has treated you unfairly or inadequately. As such, it is called a Family Provision claim.

People who are legally entitled to raise such claims are:

  • Beneficiaries who were named in a previous Will
  • Beneficiaries who are named in the current Will
  • People who would be entitled to part of the estate if there were no Will

The last point refers to the eligible persons listed previously.

It is important to understand that the only people who can make a claim are those just described. The misconception that all and sundry are entitled to make claims is simply not true. The circumstances of the claimant can be many, and such things as current financial position, whether duties as carer to the deceased existed, or whether some provision has already been made, will all be assessed by the Court.

While there is no time limit to make a claim as to the validity of a Will, there is a 12-month limit from time of death during which a claim under the Family Provisions Act must be made.

In all cases, the Court will require full and proper evidence as to the bona fides of the claim, making sound legal advice at the earliest opportunity important.

How can I safeguard the intentions of my Will?

It is vital that your Will is properly constructed, signed, and witnessed. While various kits are available, there is no substitute for proper legal advice.

If delicate family relationships are likely to escalate after one’s death, the best insurance is probably to address these issues before they become apparent during the execution of the Will post-mortem.

Complex estates and the possible complexities of extended and intertwined families make specific analysis and advice even more important.

Your Will is just that, your will – make it count.

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