Over my dead body: Estate Disputes
Clients often tell us that they want a Will that can’t be challenged. Unfortunately, or fortunately depending on which side of the claim you’re on, there is no such thing as an ‘unchallengeable Will’. In every Australian state and territory, legislation allows certain persons to make a claim on an estate if they can establish that they have not been adequately provided for by the deceased person’s Will.
Who is an eligible person?
In the ACT, there are a number of categories of persons who are eligible to make a claim, including partners, children and in limited circumstances stepchildren, grandchildren and parents.
By far, the claimants who most frequently approach us are children who have not been provided for in their parent’s Will or who feel they have not been provided for adequately in all the circumstances. This often occurs as a result of a parent making a conscious choice to leave a child out of their Will entirely or to leave less to one child than others, usually because of a relationship breakdown between the parent and that child. In other cases, particularly where a parent has re-married, a child may be omitted from a Will because their parent has advertently or inadvertently left their entire estate to their new partner.
As experienced Wills and Estate lawyers, we know that when a child is deliberately omitted from a Will or not sufficiently provided for, it is often a very difficult decision for the Willmaker and one that should not be made lightly or without comprehensive legal advice.
Often, costs of the claim are paid from the estate. This depends on a number of factors, including whether the claim has some merit and the value of the estate. The risk is that the value of the estate can be reduced or depleted in the costs of the claim meaning that the inheritances of other beneficiaries of the Will who you wished to inherit may also be affected.
Eligibility is not enough
It is not enough to be an eligible person for the claim to be successful. In considering whether the person has been provided for adequately and if not, how to rectify that inadequacy, the Court must consider a number of other factors, including:
The character and conduct of the person making the claim, for example how they treated the deceased person;
The nature of the relationship between the person making the claim and the deceased person;
The financial circumstances of the person making the claim and the deceased;
Any financial or non-financial contributions made by the person making the claim to the deceased and vice versa.
How can I protect my assets?
As a part of your estate planning, it is important to explore creative ways to structure your whole estate, not just your Will. This can help to mitigate the possibility of a successful claim being made on your estate. We provide complete services when it comes to Wills and Estate planning. We can:
Ensure you avoid common mistakes made in Will-Kit Wills;
Provide comprehensive legal advice tailored to your unique family circumstances so that you can make an informed decision about whether to leave a loved one out of your Will;
Prepare documents that will ‘speak from the grave’ so that your reasons for omitting an eligible person, should you choose to do so, can be put to the Court if a claim is made;
Help you structure your assets so that they pass to the person who you wish to receive them upon your death;
Provide advice about transferring some of your assets to your intended beneficiaries while you are alive;
Put you in touch with financial advisors to assist you to make good financial choices in your estate planning.
Contact us for legal advice tailored to your unique circumstances
We take a holistic approach to estate planning to ensure we have all your bases covered. A small investment now in your estate planning can avoid in-family fighting and costly financial and emotional consequences for your loved ones later. Contact us to find out more or to book your estate planning consultation.