It’s easy for a disgruntled family member to say “I’m going to challenge the Will”. However, there’s
only a few limited ways in which a Will can be challenged.
The most common way for a challenge to be made is under family provision legislation. This allows certain people to make a claim on your estate. Each State and Territory has its own legislation and there are significant differences between the States and Territories.
All States recognise that a spouse (married, de facto or same sex) or a child (of any age) is eligible to make a claim.
Some States have broader definitions than others. For example, the definition is very broad in Victoria where a neighbour was successful in a claim. In NSW there was a case where a son who lived in Victoria was able to make a claim in NSW against the estate of his mother who lived and died in Malta. He was able to make the claim because his mother owned real estate in NSW.
What assets are subject to a claim?
Any asset that forms part of your estate is subject to a claim. In NSW, the court has even broader powers in relation to assets which normally may not be part of your estate. These include jointly owned assets as well as superannuation. The court has power to deem such assets as ‘notional estate’ and use them to provide a benefit to a successful eligible person.
If someone can make a claim, should you bother making a Will?
Yes, you should definitely make a Will. The courts respect and uphold the right of a person to make a Will, distributing their assets as they’ve instructed. Just because a person is eligible to make a claim doesn’t mean they will be successful. The courts will generally only favour applicants who can prove they have a genuine need, and that the deceased has failed to provide for them either during the deceased’s lifetime, or through their Will. In some cases, the poor conduct of an applicant may be the reason why the deceased wishes to disinherit them.
What can you do to minimise the chances of a claim being made, or being successful?
Unfortunately, you can’t stop challenges from being made. However, you can take steps to minimise the likelihood of a claim being made. A professional qualified in the area of Wills and estate planning can help you plan for the possibility of a claim. In some States or Territories this may involve a review of the way in which you have your asset ownership structured. Courts in all States and Territories are able to accept into evidence statements from the deceased.
An estate planning specialist can also assist in preparing a statement (or affidavit) whereby the Willmaker (after their death) can give their evidence to the court. This may include details of the provision which the Willmaker may already have made in favour of the potential claimant. It may also include details of the conduct or behaviour of the potential claimant which the Willmaker believes is sufficient to justify excluding the potential claimant from inheriting a part of the estate.
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