We’ve all heard the saying ‘Where’s there’s a Will… I want to be in it’, or how about, ‘where’s there’s a Will… there’s a relative’.

It’s an emotionally charged time when someone passes on, and it is those strong emotions, and often a sense of possessiveness over the deceased, their money, or being the one who grieves the most, which can bring out the worst in people, and make an already bad situation so much worse.

Why Wills get Contested

The bottom line is, that a Will may get challenged when someone feels aggrieved by the contents of the Will. Oftentimes this is fuelled by greed or resentment.

But at other times the Will can be challenged where the Will maker has not done the right thing by someone and has failed to provide for them when they should have, or the Will is not valid.

Grounds to challenge a Will

Lack of Testamentary Capacity and Lack of Intention

Where the Will-maker had a lack of capacity, say from dementia or deficiency of mind, any Will that they try to make can be overturned.

Likewise, if the ‘Will-maker’ signed a document that they did not intend to be a Will, even though it may look like a Will in some respects, can be overturned.

Duress

If someone is forced to sign a Will, that Will shall not be said to be valid, because it wasn’t the signatory’s real Will.

Failure to provide

This is the most common ground for the challenge to a Will. The claimant does not need to prove that the Will is invalid for any reason, just that the testator failed to provide for them, when they had a duty to do so, namely that they were dependent on the deceased.

Can we leave our money to whomever we decide?

At a very basic level we can leave our money to anyone, at least at a Common law level. But then the government stepped in after too many people were leaving their family destitute by leaving all their money to a mistress or only the male heir or perhaps even the Lost Dogs Home out of spite (not to say that leaving to charity is not a worthwhile cause.) The government had the idea, and rightly so, that it really was for the individual to provide for their own family, rather than the State having to shoulder this burden, and put a few restraints in place.

Who can Challenge a Will?

So, when the legislature stepped in, they stated that a family member could claim against the estate of a deceased, where that person had a morally duty to provide for the claimant.

For many years this turned into a free-for-all. Many Wills put through the Probate process were challenged by sometimes distant relatives, or people who lacked the need but who were driven by greed, and sense of entitlement or even where the Will wasn’t “fair”, in much the same way as a toddler may think it isn’t fair that their sibling got a bigger slice of cake, even though they have more than enough cake on their own plate.

The Courts were then becoming bogged down with all these claims, made worse by the fact that the legal costs of a challenge were often paid from the deceased Estate, so there was nothing to lose for many.

So again, the Legislature stepped in a tightened things’ up so that only dependents of the deceased could make a claim for support from the Estate. While this was bad news for many prospering law firms, it was good news for the busy Courts and Testators.

Preventing a Challenge

Now the question arises of who is a dependant, and who do we really have a duty to provide for? The answer to this varies in each of the States.

However, if you feel that someone could make a claim against your Estate when you are writing your Will but that you do not have a duty to leave them anything, or more than what you have, there are a few things you can do:

  1. Document why you have written the Will in the way that you have;
  2. Consider the use of a Trust to own your assets, but this must be set up specifically with the end in mind;
  3. You could enter a Binding Financial Agreement with your Spouse or Partner. Second marriages are particularly messy in this regard;
  4. Enter a Deed with your family in relation to how you intend to deal with your Estate;
  5. Manage everyone’s expectations while you are still alive;
  6. Gift important items while you are still alive.
  7. Keeping your Will up to date and secure (such as left with your lawyer), to ensure that you’ve considered the changing needs of your family.

 

Please leave your comments, or get in touch with the writer if you have any questions.

 

The aforesaid is not legal advice and is only general in nature. Please obtain advice specific to your own circumstances, alternatively get in touch with the writer.

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