Contesting Wills is one of the most rapidly growing forms of litigation in WA today.
Recently, a daughter of a billionaire contested her father’s Will, which made provision for her of $3,000,000 to be held on trust, until she turned 30 years.
The daughter contested her father’s Will and the inadequacy of the provision made for her and was subsequently awarded $25,000,000. Given the size of the bounty, which was said to be in the region of $1,000,000,000, and being one of four children of the deceased, was the award of $25,000,000 adequate provision?
With increasing property values over the past 20 years, large superannuation contributions because we are working and living longer, means many are leaving behind significant amounts of money – whether in cash, shares or in property investments. When combined with the rise of divorces, de facto relationships and blended families, it makes for many more potential claimants than in the past.
The Law
Why make a Will, when the law allows it to be contested? Many people ask this question.
So long as you are mentally of sound mind and able to make a Will, you can leave whatever you have to whomever you want. However, it would appear that this unfettered discretion is tempered by our legal system, which believes it has a ‘moral responsibility’ to make provision for certain family members
If adequate provision is not made for the proper maintenance, support, education or advancement in life, of certain family members, the Family Provision Act 1972, “opens the door” for your Will to be contested.
Pursuant to the Act, only certain classes of people may contest – namely, current or former spouses, children and de facto children, step children, grandchildren, and parents. However, some of these classes of persons can only contest a Will in certain situations.
The Supreme Court of WA has the power to “override” the wishes of the deceased, contained in a Will that fails to make adequate provision for these classes of persons. If the court allows such an application to proceed, your Will is effectively rewritten by the Court, after you die.
How to avoid your Will being contested
Every individual and every situation is unique and different. Therefore, you should speak to one of our experienced lawyers to discuss your own personal situation.
Generally speaking:
- Ensure you make adequate provision for any family members who could prove they are even partially dependent on you;
- Be wise and fair in your Will by not (by way of “cheeky” example) leaving $20,000 to care for your beloved pet and then leaving out your troublesome step child, who lives with you;
- If you do intend to make an “uneven distribution” or leave someone out altogether, always make provision for an explanation either in your Will or in a separate document;
- Review and if necessary, update your Will every 3-5 years. Earlier, if certain circumstances change before that time;
- Take time to discuss your Will with your intended beneficiaries, be open to talk about your plans, after your death.
In relation to the last point, the more you discuss your Will, the fewer unresolved issues there will be and this means the less likelihood of a challenge to your Will.
Ultimately, a properly drafted Will can prevent many disputes. Alternatively, a poorly drafted Will or a Will not properly considered can result in protracted, expensive and acrimonious litigation.
Sound legal advice and discussions with family members and intended beneficiaries are paramount, in order to avoid your Will being challenged.
Have you been unfairly treated in a Will?
The death of someone close is a sad and trying time. Contesting a Will only makes things even more difficult. However, if you believe you have been unfairly treated or entitled to more from a deceased estate, we may be able to help.
Even though the law recognises a person’s right to choose who will inherit his or her bounty, there are good reasons as to why a person should be contesting a Will, for example:
- You’ve been completely left out of the Will;
- You’re receiving a lot less than others, unfairly provided for;
- The Will may not be valid; and/or
- The executor was negligent.
Whatever your reason for contesting a Will, we can assist, by helping you get what you may be entitled to. Contesting a Will can be complicated, but we can guide you through the process and keep you informed about your options at every step. More often than not, most matters are resolved at mediation. This keeps your costs to a minimum.
By engaging Balmoral Legal:
- We make sure the claim is viable, in context of the size and value of the estate;
- We need to determine the size and value of the estate;
- We will negotiate your best outcome, in the first instance; and
- We help minimise the stress involved in any litigation.
Please talk to one of our estate litigation lawyers who have years of experience in handling a wide range of disputes and other estate matters.
At Balmoral Legal, we can determine if you are entitled to make a claim and let you know what the outcome is likely to be.
Call us now.
