My Will, My Way!
Such contests often result in your desired beneficiaries receiving less than you planned, or those you excluded receiving a portion. This can prevent your wishes from being fully honoured and cause your Estate to shrink due to the legal fees involved when a Will is contested.
Fortunately, there are steps you can take to reduce the risk of your Will being contested, while still ensuring your assets go to the beneficiaries you choose.
What is my Estate?
Your Estate consists of the assets that are distributed according to your Will. However, not everything you own will form part of your Estate. For example, superannuation paid directly
to a nominated beneficiary, jointly owned property, and joint bank accounts generally fall outside of your Estate.
Understanding which assets form part of your Estate is important, as assets that fall outside your Estate are generally not subject to contest under your Will.
Who can contest my Will?
In Queensland, the most common way to contest a Will is by a Family Provision Claim. Family Provision Claim allows certain individuals to apply for further provision from your Estate if they believe they were not adequately provided for under your Will.
Those eligible to make a Family Provision Claim are:
1. Your spouse (de facto or married);
2. Your children (biological, adopted and in some circumstances stepchildren); and
3. Dependant (anyone financially dependent on you at your passing).
What is adequate provision?
Adequate provision refers to whether a person has been properly provided for in your Will, considering the assets that form part of your Estate.
There is no one size fit all answer to what constitutes adequate provision. It depends on several factors, including the size and nature of your Estate, the relationship between you and the person making the Family Provision Claim, and that person’s personal circumstances at the time of your death.
How to Reduce the Chances of a Family Provision Claim?
Unfortunately, simply stating “I do not want anything left to XXXX” or leaving a nominal amount like “$100.00” does not prevent that person from making a Family Provision Claim.
In some cases, explicitly excluding someone or leaving them a nominal amount may increase the risk of a claim being made.
While there is no guaranteed way to prevent your Will from being contested, careful and proactive planning can significantly reduce the risk. Not only does this lower the likelihood of a claim being made, but it can also strengthen your Estate’s ability to defend against any Family Provision Claims that are brought.
One effective strategy is to reduce the size of your Estate by arranging for certain assets to pass directly to your intended beneficiaries upon your death. This can be achieved by:
Making binding superannuation nominations;
Adjusting how your bank accounts are structured (e.g., joint accounts or trusts);
Changing the way property and other assets are owned (e.g., joint tenancy or trusts);
Gifting funds and assets during your lifetime.
The smaller your Estate, the less financial incentive there is for someone to pursue a claim. Additionally, you may want to prepare a supporting document, such as a statutory declaration, explaining your reasons for excluding a person or leaving them a smaller share. While this will not prevent a claim, it can help your Estate defend against any challenges made after your
passing.
Get Peace of Mind?
Want to understand how this might affect you, how to create a new Will, or how to reduce the risk of your Will being contested? Call us on 5445 1213 to schedule your free, no-obligation
15-minute phone consultation. Just mention this article when you call!
Johanne Viavattene, one of the many skilled solicitors at Cameron Rogers & Co Solicitors, is always happy to use her comprehensive legal knowledge to assist clients with estate Planning,
estate management, and a wide range of other legal matters.
Reach out to us for an obligation free consultation now on 07 5445 1213 or book a consultation.