A will is a legally binding document that specifies how you want your possessions distributed after your death; nevertheless, it may be challenged for several reasons. Up to half of all wills in Australia end in litigation because of resentment from surviving relatives. There is a high likelihood of a will being challenged in Australia; thus, clients often consult their will lawyer for guidance on how to avoid this. But there are steps that may be taken to lessen the possibility of a will being disputed or to reorganise assets so that they are not included in the estate. This article discusses the issues surrounding the inability to avoid contesting a will in Australia.
Table of Contents
In What Situations Can a Will Be Contested?
In contrast to contesting a will, “challenging” a will means arguing that it is not valid because its execution did not comply with legal criteria. However, if one of the parties to the will believes they were unfairly treated, they may file a challenge to the will in Australia.
A person who wishes to challenge a will must provide evidence that they are financially vulnerable and that the decedent should have provided more for them. Therefore, the applicant’s present financial situation and the nature of their relationship with the deceased individual are of paramount importance to the application. The deceased person’s moral obligation to aid the applicant will be considered, as will the deceased person’s provisions in the will for the deceased person’s other beneficiaries. The court makes the final decision on the subject of what a “reasonably thinking testator” would do.
Who Has the Right To Contest a Will in Australia?
Although there is a legal procedure in place in each Australian jurisdiction for some persons to contest a will, the eligibility requirements for this process differ widely. One jurisdiction may allow a grandchild to challenge a will simply because they are a grandchild, while another may need them to have been financially dependent on the testator in the past. This is contextual and may change from place to place.
The right of a surviving spouse or child of a deceased person to contest the deceased person’s will is one of the few things that is consistent throughout all legal systems. The fact that a person who is already a beneficiary may still dispute the will in the hope of receiving a bigger share of the estate is another way in which this situation is comparable to others.
How Can You Reduce Will Contests in Australia?
Making sufficient provisions for anybody who, notwithstanding the will’s terms, could be able to successfully question its validity is the simplest and most effective strategy to reduce the likelihood that someone would challenge its validity. It is not essential to make equal provisions for all of the beneficiaries; all that is required is to act in a manner that a reasonable testator would under the given conditions. It is also a good idea to provide a written description of the attention that was given to the needs of each recipient, as well as a justification of the distribution based on the beneficiaries’ present and future needs. The real question is whether you have provided for the child or other family members in a manner that is reasonable, taking into consideration all that has happened.
Obviously, the results of this method will vary depending on the person being tested. It is very uncommon for clients to urge their will lawyer to design wills that fully cut out a person who otherwise has the legal right to oppose the will. There are actions that may be performed during the testator’s lifetime to lessen the number of assets or the value of the assets that will be included in the estate of the deceased person.
One approach that might be taken in this direction is to name a beneficiary for one’s life insurance and superannuation benefits. When there is a valid and legally binding nomination in place, the payment is simply given to the nominee, and the policies are never included as part of the estate of the dead person.
Another method is to make sure that the property in question is held jointly by both you and the person who is going to be the recipient of the asset. When one of the joint owners passes away, ownership of the asset will automatically transfer to the remaining joint owner, and it will no longer be considered part of the estate of the dead joint owner. This method is also applicable to bank accounts that are owned jointly by many people.
The value of a testator’s estate may be reduced by making gifts during the testator’s lifetime. Because the asset is no longer considered part of the dead person’s estate, it cannot be dispersed in the event that the will is challenged and found to be invalid. Caution is advised when using this strategy, as it may have unintended consequences for the testator’s taxes or income support payments.
Since there seems to be no lack of wills in our world, a will lawyer is often needed to challenge them. They use such measures because they seek to prevent the testator from subsequently altering or revoking the will. They may achieve this, for example, by ensuring the testator is aware of his or her legal options in the event of death.