Will Contests

Don’t let a Will dispute or Will contest tear your family apart

A Will dispute or contest, is a formal objection raised against the validity of a Will, based on the assumption that the Will does not accurately reflect the intent of the person who drafted it. Will disputes and contests generally arise from claims that the testator (Will creator) has not provided sufficient provisions to financial dependants or relatives, was subject to Undue Influence or was not of sound mind during the Will drafting.

A person must have some legal interest in order to challenge a Will. If that person would have inherited assets if there was no Will, if they were named as a beneficiary but didn’t receive what they anticipated, or if they were promised something in the Will but didn’t receive it, then that person has grounds to challenge a Will.

Spouses, children, parents and de facto partners usually have grounds for challenging a Will. In a lot of cases, even grandchildren, former spouses and former de facto partners can initiate a Will contest. As a matter of fact, one of the major motivations behind Will disputes and contests is simply because someone thinks they are unfair.

Undue Influence is another common reason for Will disputes and contests. It is generally defined as a testator’s lack of free will regarding their Estate Planning decisions due to psychological persuasion from someone that stands to benefit from the Estate Plan. Suspicions regarding Undue Influence usually arise when a trusted friend, relative or caregiver actively pushes for a new or altered Will.

The reason behind the alarming increase of successful Will contests in Australia is the fact that Wills are not being drafted correctly in the first place, due to a lack of education and training. Since the early nineties, no lawyer has had to learn about Will or Estate Planning as part of their degree and because of this there are very few Estate Planning specialists in the country. With such few Estate Planning specialists, people are not always receiving the proper legal advice they need, which opens the door for an abundance of emotionally devastating Will contests.

Will contests can cost those challenging nothing because funds often come out of the Estate to pay for the legal fees. This incentive, combined with a large quantity of well-prepared lawyers, encourages more and more people to go against the wishes of the deceased in the hopes of a bigger payout.
The following real-life example demonstrates how a lack of thorough Will planning can lead to emotional and financial disaster for your loved ones:
A recent court case saw a widow challenge a Will because she felt she wasn’t properly provided for. Her late husband, (who she had nursed through ill health during his last years) had reconnected with his three sons from his first marriage, shortly before he passed away. He decided to split his Estate evenly between his wife and three sons.

The widow felt that her husband’s recent relationship with his sons didn’t warrant such a large share of his Estate being left for them, especially after she had spent years of her life caring for him. After a lengthy court process she ended up losing the Will contest and $180,000 in legal fees were awarded against her. On top of that, she had to sell the house to cover the legal fees and give the sons their money. She currently doesn’t have a home and still owes around $62,000 of unpaid legal fees. Her suffering is the last thing her husband would have wanted.

This example and many others just like it could have easily been avoided with more thorough Estate Planning and assistance from accredited specialists. If you wish to avoid a Will contest adding further grief to your family once you’ve gone, seek advice from an Estate Planning specialist and consider these factors:

Don’t Procrastinate

Prevent the threat of Will contests by updating your Estate Plan while you are able to make informed decisions and comprehend the consequences of these decisions. If you’re not entirely sure what you want in your plan, you can still get active. Drafting an Estate Plan that meets most of your goals is far superior to no plan at all. Avoiding a Will contest is about identifying any potential problems and resolving them sooner rather than later.

Don’t keep it a secret / Memorandum of Agreement

Letting your loved ones know what you have planned and your reasons why will eliminate any big surprises. Should you wish to significantly reduce the risk of a Will dispute or contest arising, you may want to consider a “memorandum of agreement”.
A memorandum of agreement (MOA) is simply a written document which allows two or more parties to meet an agreed objective. The purpose of an MOA is to have a written understanding and proof of an agreement between parties. An MOA can be achieved by calling a meeting in which the division and allocation of an Estate is clearly explained to the beneficiaries.

Whether it’s property, possessions or wealth, if the beneficiaries are all happy with their allocation and the conditions, then an MOA can be signed. Will contests against a signed MOA will be near impossible as the beneficiaries will be challenging what they have already legally agreed on.
What you choose to do should be based on what you think will best prevent a Will dispute or contest arising within your family circle. Consulting with an Estate Planning professional will significantly aid in your Situation Analysis and decision making process.

Trust in a Trust

A revocable living trust is an excellent medium for deterring a Will contest as it is a personal document that is kept private, while a Will becomes a public document as soon as it’s filed with the probate court. Revocable living trusts can cover all phases of your life while Wills only come into effect after you have passed away. It might also pay to consider establishing a lifetime trust for any beneficiaries who you are concerned will misuse their inheritance.

Revisit

Once you’ve made an Estate Plan you are content with, don’t forget about it. It pays to revisit your Will and Estate plan at least once a year and consider any tweaks or significant changes needed. Regular consultation with a trusted Estate Planning professional will help you review your arrangements and make any changes needed to best represent your ever-changing family and financial situation.

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