Battle Of Wills

November 4, 2020

When the king of pop Michael Jackson died unexpectedly, things descended into a messy and very public spat. His siblings protested when he left his estate to a family trust. Closer to home, Bob Hawke’s affairs generated a similar maelstrom when one of his daughters felt she was disadvantaged by her father’s will. This begs the question, in the battle of wills, who wins?

Contesting a will

Death is one of the most confusing and emotional times in life. Alongside the need to grieve, there are the practical things that need to be done – arranging the funeral, wake, and all the tasks that goes with it.

At this stressful time,  the Will can act as a flashpoint for families where there are expectations and disappointments. Throughout history, wives, children, husbands, siblings, and grandchildren have been left out of wills. And with the increase of blended families and multiple marriages, Wills become increasingly complex and increase the chances of a will being challenged.  Of course, if you want life to run as smoothly as possible for the people you leave behind, it makes sense to lock down every aspect of your Will.

In this article, we explore ways of creating a strong will that avoids leaving behind a mess; changing a will; and contesting a Will.

Legal planning secures your assets for the future benefit of your family and loved ones. Drawing on many years of legal experience, CM Lawyers generates legally effective wills with the force of law.

Creating a Will that withstands a challenge

You’re entitled to leave your assets to anyone you wish – but you can’t really stop someone challenging your Will. Someone can contest your Will if they believe they should have been included or haven’t been treated fairly. A 2015 report showed 86% of claims were brought by immediate family, either by the children or partners. Over half of the claims were brought by adult children. 

Here’s who can challenge wills under the Succession Act 2006:

  • Your current or former spouse
  • Your current or former de facto partner
  • Your children or step-children
  • A grandchild who was dependent on you and lived in the same house with you
  • Someone you were living with in a close personal relationship at the time you died.

The onus will be on them to demonstrate that you didn’t make adequate provision for the proper maintenance, education or advancement of their lives as a result of your will.

Furthermore, they can challenge the will if they believe that assets were not disclosed correctly, and as a result, there’s been a detrimental change in your circumstances.

They may also challenge if they are a genuine dependant.

Not sure if you need a Will? Read Our Article Called Yes, You Need A Will And Here’s Why for great advice on why creating a will is a good idea.

Here’s how to write a robust Will:

  1. Get professional and specialist advice. When you’re ready to write your will, be sure to get advice from an expert who works for you and has your best intentions in mind.  Do-it-yourself Wills are problematic in their simplicity and can cause more trouble than you anticipate. A good lawyer will spot any areas that haven’t been considered and that may be unclear down the track.  
  2. Be clear with your wishes. Hold a family meeting and explain your intentions and why. If that’s not possible, set out your reasons in a letter which can be read at the time of your will. This may not prevent a challenge but it will certainly help you achieve your desired effect.
  3. Make sure your Will is up to date. Whenever you reach a milestone or make a major change in your life – find a partner, have a child, buy a house, set up a business, or enter into a new partnership – be sure to update your will to reflect your new circumstances. At the very least, review your will to make sure it still applies. Failing to do so can open your Will up to contest.

Changing a Will

A Will remains in place until you change or revoke it – except in two situations. More about that shortly. You can update a will by adding a codicil (an addition or supplement to the Will). This must be signed and witnessed in the same way as the original Will – you can’t make changes to the existing ones. It’s usually easier to create a new Will and go through the process to avoid any issues for your loved ones.

The two situations in which a Will could be wholly or partially revoked are marriage and divorce – in the latter, it will only partially revoke the Will (any gift to your former spouse, and usually the appointment of your former spouse as an executor, trustee or guardian).

In short, make a new Will using experts to help.

Challenging a Will

If you believe you should have been included in a Will, you may have a claim under the family provision chapter of the Succession Act. A 2015 report by a combined university research team, Having The Last Word, looked at Will making and contesting Wills in Australia. It found that contestation has a high rate of success whether it’s through mediation or the courts. Most Wills that are contested are done so under family provision legislation, as set out earlier, and adult children are the most common claimants.

The court will consider factors like:

  • any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,
  • the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, any beneficiary or another person who has applied for a family provision order 
  • the nature and extent of the deceased person’s estate, any liabilities or charges to which the estate is subject,
  • the financial resources (including earning capacity) and present and future financial needs of you and any other person who has applied for an order
  • if you’re living with another person—the financial circumstances of the other person
  • your age
  • whether you made any contribution (financial or otherwise) to the acquisition, conservation and improvement of the estate or welfare of the deceased person or their family.

What is the process of creating a Will?

A claim must be made before the estate is finalised and distributed to the other beneficiaries. As mentioned previously, if you believe you have been disadvantaged by a Will, you will need to demonstrate how you’ve been adversely affected – financially or in other ways.

For the last word in writing or challenging a Will, get professional and specialist help from a firm like CM Lawyers. They’re on your side and want to get the best possible outcome for you. Contact Us Today should you have any questions or need assistance with creating or challenging a will.

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