How Wills Work and Why they are Contested
A will is a legal document that assesses how an individual’s property and or assets will be divided once they are deceased. Sometimes a will can be contested and typically it happens when someone feels that that they were inadequately provided for or if they feel that it is invalid. A will is created to protect a person’s wishes, which is why it’s important to ensure it is done correctly.
Process of Contesting
Typically, there is a process that takes place when an individual feels a will should be contested. This process is as follows:
1. A claim is filed
2. Mediation occurs in hopes of resolving conflict
3. If an agreement cannot be made, it moves to trial.
4. The court will then reevaluate the estate distribution and either redistribute the assets and or uphold the will.
Strategies to Protect
1. Ensure the will is accurate and precise:
Hire a lawyer that can make sure all aspects of the will are clear and that they meet all requirements. It is also important to ensure intentions are clearly outlined to avoid disputes.
2. Update the will regularly:
As circumstances or relationships change, make sure the document is updated accordingly. Some events that can change the will include but are not limited to marriages, divorces, births, and deaths.
3. Set up Testamentary Trust:
This is a trust that begins only upon the death of a person that created the will. This allows for potential tax benefits as well as asset protection. Furthermore, it can be more difficult to contest than a will.
4. Appoint power of Attorneys and Guardianship:
Since a will is only relevant after death it is important to appoint a trusted individual to manage financial and personal matters during one’s lifetime. Ensuring a seamless transition and a good relationship for the appointed to carry out the deceased wishes.
5. Use binding death benefits nominations:
This is a formal instruction telling the super fund who should receive super and insurance benefits once deceased, and it must be followed.
6. Practice clear communication:
It is vital to communicate as well as leave written evidence explaining the choices that were made regarding the will. This will ensure the individuals inheriting the estate can understand the reasoning behind the asset division.
Example: Mary vs Daughter
Mary passed away and left the entirety of her estate to her son. Her daughter was omitted from the will even though she has a disability and is not financially stable.
As a result of this the daughter felt the Will should be contested, since she was not compensated fairly. She argued that it was her mother’s duty to care for her, even though they had been estranged for the past few years
The court recognised the daughter’s needs and overturned the will to reward her half of the estate.
This is a prime example of how this situation might have been avoided if Mary had used some of the above strategies, such as clear communication or establishing a trust.
Avoiding Will Contests
It is vital to make sure all aspects of a will are clear and follow the legal regulations. This can help ensure that there will be no reason for the will to be contested. By understanding the steps involved in contesting a will, individuals can take proactive steps to eliminate risk and challenges.
Contact OpenLegal today at enquiries@openlegal.com.au or 1300 982 068 for a confidential consultation to discuss your situation and explore the best path forward.
Elle Laney, Intern at Open Legal
