Where there’s a Will there’s a way

Asset Protection & Estate Planning
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May 10 2019

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Where there’s a Will there’s a Way

People making a Will normally think that they can do what they want with their own property. Since this is true for people during their lifetime, many are surprised to learn that their Wills can be challenged after their death if they do not meet certain requirements. This article talks about the main ways that Wills are challenged in the Courts.

Family Protection Act

One of the most common kinds of challenges to a Will is a claim under the Family Protection Act. This 1955 piece of legislation allows certain family members (particularly children) to make a claim for “maintenance”. A Court deciding this kind of claim will ask whether the person writing the Will has properly considered their moral duty to look after their family and may adjust legacies if the Court considers the Will to be unfair. For small estates, maintenance is normally ordered for children or other dependents who have special needs. This can be a medical condition or financial circumstances that mean they need a greater share of assistance than other children. In larger estates (particularly those over $500,000) the Courts may order maintenance in favour of any child who did not receive a reasonable share of the estate. Awards of between 10% and 20% of an estate are often made in favour of a Will-maker’s biological and adopted children.

This does not mean that it is impossible to make a Will that does not provide for all children. Sometimes a child will have acted in such a bad way toward their parent that they are “disentitled” from receiving any gift, however, the standard for this is very high and needs to be properly documented. Likewise, while there is no presumption that the Will-maker will share assets amongst children equally, the larger the disparity, the clearer the justification for it needs to be. It is very important when making a Will to consider how any unequal distributions are justified.

Testamentary Promises Act

A second kind of claim is found in the Testamentary Promises Act. That legislation allows potential beneficiaries to sue the estate for promises about gifts that would be left to them in a Will. These claims are significant because the applicant does not need to establish that there was a formal contract. So long as the promise was made in return for some value (even for past good works or familial affection) they may be able to receive what they say was promised to them.

Talking about your Will with family can be difficult and embarrassing especially when children are being treated differently. However, the best way to prevent a Testamentary Promises Act claim is to be clear with the family as to what they are likely to receive under the Will and to explain the reasons for these decisions. When circumstances change, sometimes promises that have been made will also need to change and this should be discussed openly.

Undue Influence

A final kind of claim that can be made against a Will is based on a direct attack on the Will itself. Where the person writing a Will has been influenced by a family member (such as a child who is involved in their care) this can lead to a Will being disregarded. Like cases where the Will-maker did not have the legal capacity to write a Will, cases where a person has been unfairly influenced by a person can mean that a Court treats a Will as not representing the Will-maker’s intentions. The Court may look to earlier Wills or make adjustments to ensure that the Will-maker’s true intentions are recognised. Where a Will is made by a person in poor health or with the assistance of a very close family member, the chances of this kind of claim increase. It is very important in these circumstances that the Will-making process is property documented and a lawyer should be engaged to give independent advice to the Will-maker. This kind of claim is unique because it is about protecting the Will-maker and reflecting their true intention. However, it can also be open to abuse.

Conclusion

Making a Will is a very important decision and Will-makers should be able to expect that their wishes are carried out. For this reason, it is important that you obtain good legal advice when writing your Will. It is also a good opportunity to talk with family about your wishes and expectations for once you have passed on, so that you know your desires will be respected.

Holland Beckett Law’s team are qualified to give advice on ensuring that your Will is safe and can also assist you with resources and support to allow you to have these difficult conversation with family. Our team of experienced lawyers are more than happy to discuss any of these matters with you further.

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