Contested Wills

Why are Wills contested?

When it comes to making your Will people who are single, and without children or financial dependants, are free to do what they like with their estate, that is, they may leave their estate as  they wish.

For those with a spouse, partner, children, or step-children you have a responsibility to consider the needs of your prospective beneficiaries and then make adequate provision for each of them.

What you need to consider

In most instances concerning children including step-children, it is sufficient to leave your estate in equal shares however that will not be so when one or more children is in receipt of a Government pension or suffers a disability which affects their ability to earn income and support themselves.

Further, an adult child who is living with a parent when the parent dies may also require careful consideration when that parent makes his or her Will as such an adult child may have a greater claim on the estate than his or her siblings. It may be that adequate provision requires the child having the right to continue to live in the family home after your death for a period of time.

In some circumstances it may be prudent to leave an adult child, a spouse or partner, the right to live in the family home for the rest of his or her life (known as a life tenant) and after his or her death the family home may be sold and then the sale proceeds distributed to the remainder beneficiaries.

Where such provision is made there needs to be clear instructions to the Executor as to who will meet the costs of insuring the home and maintaining the home during the life tenancy. Sometimes a separate fund is put aside by the Will-maker for such expenses.

Further, adequate provision might require that the life tenant, being a partner or spouse, has the power to sell the home and downsize or use all or part of the proceeds from the sale to pay a Refundable Accommodation Deposit if entering an aged care facility. In those instances the remainder beneficiaries of the estate may receive the balance of the Refundable Accommodation Deposit when the life tenant passes away.

When making a Will, if you do not wish to make adequate provision for a child you will need to speak to your solicitor as simply leaving a nominal amount to a child will open the door for your Will to be contested.

When a beneficiary is not happy with their share from their parent’s estate they will often seek to show the Court that mum or dad did not have all of their faculties when they “cut me out of the Will”.

We advise our clients to attend upon their Doctor and obtain a short letter to the effect that the Doctor is satisfied that the Will-maker did know and understand what was required before signing their Will.

Probate of the Will

Depending on the nature of the estate Probate of the last Will may be required by the Executor. The Supreme Court grants Probate of a Will to the Executor named in the Will once the Court is satisfied that the Will was properly made and is the last Will of the deceased.

The Court can require the Executor to explain why there are marks on a Will, or why a witness signed with a different colour pen, or if the Will-maker died of Dementia (or related illness) the Executor will need to provide proof that the Dementia did not affect the capacity of the Will-maker to make their Will.

If the Court is satisfied then Probate of the Will is granted to the Executor to carry out the terms of the Will. If the Court cannot be satisfied then the Court will look at earlier Wills made by the Testator, and if there are none, then the Testator is deemed to have died without a Will, and in that event, the State Laws determine what happens to your estate.

How we can help

Some people prepare their own Will or buy a Will-kit from the shop and try to complete the Will themselves. Giving instructions to your lawyer for the preparation of your Will is not expensive.

The reason why there are increasing instances of children, step-children, spouses or partners contesting Wills is because of the claim that what he or she received from the estate is not adequate to meet their needs.

As lawyers we are able to advise you on the Court’s approach to contested Wills and what may be the most prudent course of action in your circumstances. If you are thinking it is time to make a Will, please call our office on 3267 8066 to make an appointment.