You might be surprised at just how many there are...
A clue, it isn’t always the black sheep of the family. While many families do have the proverbial black sheep and they can cause issues when it comes to keeping your final wishes, there are several scenarios that can leave your wishes up for grabs.
Wills and estate plans are more complex than many people imagine.
For many who own or run businesses, have well-structured and considered trusts or financial plans, the idea that your final Will could be contested seems unlikely or even absurd. But it is not as uncommon as you might imagine.
Most people believe that, if we leave final instructions of who gets what, and that document is signed and verified in the eyes of the law, then those instructions will be honoured. It would be nice to think so. But the reality is, families are complicated. The law is complicated. Money makes everything complicated.
So, who does have the legal right to contest your will?
Maria Pallagi is AVA Solicitors Wills & Estate Planning specialist and has answered this question every day for more than 20 years. A surviving partner, children, grandchildren, even a de facto partner of a distant relative, and an estranged child that you have “written out” – these are just some of the examples of people who can legally challenge your will.
“It is our job to ensure our clients understand the intricacies of estate administration, “says Maria. “I endeavour to be very clear about exactly what is involved if you want to, for example, exclude someone from a will or wish you to award more to one child than another. The first step is always to draw a full picture of the family makeup and the business interests. Many people, for example, don’t realise that where assets are held can influence the ability to contest a will. We go above and beyond to create wills that are water tight.”
Laws around wills and estates differ from state to state. Where you are when you write your will, where your assets are, and even where you are when you pass away, can all open your estate up to challenges. New South Wales law, for example, is more expansive than in Queensland, opening more opportunities for claims against an estate. And each state in Australia carries its own legal quirks.
The reality is that even if you leave explicit instructions, there are circumstances abound that can render those instructions null and void. Anything held as joint tenants will immediately be passed to the surviving tenant, even if it goes against your explicit instructions. If you have an estranged family member that has acted against your best interests, they can still make a claim against your estate. In fact, unless a family member has been legally charged with a crime, it is very hard to prove that they should be disentitled.
How do you ensure your final wishes are met? The first step is to make sure you know exactly what forms your estate, where it is and in whose name. Getting all your advisors and experts on the same page is the first step, so that together, you can see the whole picture.
The next step is to discuss what you really want. It’s your life’s work, where do you want it to go? Make sure you are explicit with your wishes and clear in your language and terminology.
Maria Pallagi’s specialists’ final recommendation – think of all the people that can possibly have a legal right to your estate – and leave them something. Being left even the smallest something makes it very difficult to contest a will.
Maria has practised exclusively in the area of estate planning and estate administration since 2008 when she started her career as a trainee solicitor within a mid-tier law firm. Maria is passionate about all areas of succession law and elder law, enjoying problem-solving complex estate planning matters and assisting clients with estate administration.