28th Jul 2016
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Is a will worth the paper it’s written on?
Author: Rod Cunich
How easy is it to challenge a last will and testament

We often read sensational stories about wills being challenged. Sometimes the reported outcomes appear outrageous. Legal expert Rod Cunich explains the process of challenging a will.

I’m often asked: ‘Why bother doing a will when anyone can challenge it and undo your wishes?’

The starting point is that the court will uphold the wishes of a deceased person unless there is good reason to interfere. The underlying test a court applies is whether the will reflects (in all the circumstances) what the public might expect the deceased to have fairly done given the nature of his/her estate and the circumstances of each of the beneficiaries.

Eligible claimants
Certain people have a statutory right to challenge a will, for example a current or past spouse or de facto and children of the deceased. But having a right to challenge a will doesn’t mean the challenger will be successful. A challenger has to satisfy the court that the deceased made ‘inadequate provision’ for them; that there are sufficient assets to satisfy a claim and that others are not unfairly treated as a result of any decision.

It is not uncommon for a court to find a person was not adequately provided for, but then find that it’s unfair to reduce another beneficiary’s inheritance to satisfy the claim.

So what sort of things does a court look at?

A court must carry out an extensive investigation in order to determine whether the deceased made adequate provision for the challenger, but it doesn’t end there. The court must also look at the size of the estate and balance the needs of the other beneficiaries before an order is made in favour of a claimant.

A court will examine issues such as the following:

(a) any family or other relationship between the challenger and the deceased including the nature and duration of the relationship

(b) the nature and extent of any obligations or responsibilities owed by the deceased to the claimant and the other beneficiaries

(c) the nature and extent of the deceased’s estate (assets and liabilities)

(d) the financial resources and financial needs of the challenger and other beneficiaries

(e) if the claimant is cohabiting with another person – the financial circumstances of that person

(f) any physical, intellectual or mental disability of the claimant and other beneficiaries

(g) the age of the claimant when the application is being considered,

(h) any contribution (whether financial or otherwise) by the claimant to the acquisition, conservation and improvement of the estate of the deceased or to the welfare of the deceased or the deceased’s family

(i) any provision made for the claimant by the deceased during the deceased’s lifetime or in their will

(j) evidence of the testamentary intentions of the deceased

(k) whether the claimant was being maintained, wholly or partly, by the deceased before their death

 (l) whether any other person is liable to support the claimant

(m) the character and conduct of the claimant

(n) any other matter the court considers relevant.

So you can see that a court not only examines the claimant’s rights but continuously balances those rights against the competing rights of the other beneficiaries.

A court will only interfere with the will if, after considering all of these matters, it is satisfied that an injustice has been done.

Other claimants
It’s not only eligible claimants who can challenge a will. Others can challenge a will if they can overcome a threshold test, namely that they were dependent of the deceased in some way that qualifies they to make a claim. Simply put, if a deceased person financially supported a friend or provided them housing because they were down on their luck, then the person might be able to satisfy a court that the deceased should have made some provision for them in their will.

Is it worth having a will?
Most definitely, yes.  It is the only way you can nominate who is to benefit from your estate.  You can’t prevent challenges, but the risk of a challenge is no reason to avoid preparing a will. Most wills are not challenged. Even when a will is challenged the courts do a good job of ensuring claimants are only successful if they are deserving.

How do you minimise the risk of a challenge?
Follow these three tips:

  1. Treat all potential beneficiaries fairly.
  2. If you anticipate a challenge, prepare an affidavit setting out details of the reasons why you have left someone out or given them a small inheritance.

Lastly, but most critically, discuss your will and its contents with beneficiaries. If there is any dissatisfaction, address it in conversation whilst you are alive. Do not leave it to the beneficiaries to fight it out. Often, it’s the ‘surprise’ of finding what is in (or out) of the will that spurns litigation.

The information in this article should be considered general in nature and legal advice should be sought. This information has been provided by Rod Cunich, author of Understanding wills and estate planning.  Rod can be contacted via his site Rodcunichlawyer.com, where you can learn much more, and also buy a copy of his book.

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    COMMENTS

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    MICK
    2nd Aug 2016
    10:36am
    It might be beneficial to have some further information Ron, specifically in regard to assets left to children where bad spouses are concerned. I would not be the first parent watching a bad relationship progressing who does not want the families hard work to end end up in the bank account of a dead beat partner. Maybe write an article about this as quite pertinent this day and age where relationships end as quickly as a TV program and partners walk away and get into another relationship at the drop of a hat.
    HarrysOpinion
    2nd Aug 2016
    4:45pm
    Family Law solicitors recommended by Barristers can be a great help in cases like that. It's not as 'cut and dry' as you would like to perceive. Even in cases where one of the spouses was a mean cow, the cow may be entitled to 50% or less depending on the legal argument.
    Tarabelle
    2nd Aug 2016
    11:52am
    I am interested to know about obligation to any offspring who have "disowned" their parent.
    MICK
    2nd Aug 2016
    12:29pm
    Plenty of that happening in this crazy world we live in.
    HarrysOpinion
    2nd Aug 2016
    4:38pm
    Irrespective of being 'disowned' by a parent or by any offspring they might have a case to claim worth investigating if there is a 'need' under the Family Provision rules.
    OlderandWiser
    2nd Aug 2016
    8:47pm
    Yes. If they are lazy, no-good, nasty no-hoper who abused their parents they might well be able to claim a bigger share of their parents' estate than the hard-working, responsible children who cared for their folks in old age.
    HarrysOpinion
    2nd Aug 2016
    10:10pm
    Irrespective. If they have a "genuine need", emotions like yours have little regard or no relevance. The relevance is their financial and health position under the provision. Doesn't matter how many emotional boomerangs you throw. There are some exceptions depending on the circumstances but that's for the Supreme Court to adjudicate if you go the full length of the contest. The full length is advised for or against by the barrister.
    OlderandWiser
    7th Dec 2017
    4:49pm
    No ''genuine case'' required, HIS. Under current law, the day a greedy qualified party launches a claim against a will, the executor and the rightful beneficiaries have lost. They have no rights. The system gives the claimant a loaded gun and says ''extort away, extortionist''. At very best, the defendant MIGHT prevail in court but wear legal costs in the tens of thousands and over a year of horrendous stress and time imposition. Generally, the executors just pay ''piss off money'' and the greedy claimants and their unconscionable lawyers take full advantage of the fact that it's usually far more expedient to pay the mongrels to go away than to seek any semblance of ''justice'' in our grossly UNJUST system. The system is designed to enrich greedy and unconscionable lawyers, and it does that very well. The clients can all go to hell. Even the greedy claimant isn't likely to walk away with much after paying their parasite lawyer.

    2nd Aug 2016
    12:53pm
    Of course your will can be challenged, it happens every day, and this is why the utmost care must be taken when making a will. Even the difference between the words "want" and "wish" can have catastrophic effects on a will's interpretation and distribution of one's assets. ALWAYS see a professional when drawing up a document of such great importance.
    OlderandWiser
    7th Dec 2017
    4:52pm
    The best professional and the greatest care will not protect your estate or your desired beneficiaries from the parasites who urge greedy and self-entitled people to challenge wills and offer them ''no win - no pay'' representation to persecute executors and cheat rightful beneficiaries. In the end, the only winners in these cases are the parasite lawyers who sole focus is lining their own pockets and who seem to think they have a greater right to money left by a deceased than any family member or anyone named in a will.
    HarrysOpinion
    2nd Aug 2016
    4:28pm
    The best approach is for the claimant to recommend Mediation with the Executor of the Will. This process involves solicitors and barristers of all parties involved, around $25,000 cost for each claimant and defendant. Depending on your solicitor and barrister you may be able to agree to pay costs on deferred basis with some small amount of cost upfront of, say, $2,000 and the balance of the cost can come out of the deceased'd estate. This will depend on whether you have been left enough money in the Will to cover in case you lose your claim. There are some excellent barristers who specialise in these matters and who can also recommend excellent solicitors to handle the preliminary process on your behalf. If you are in NSW google for barristers who specialise in this area first and consider your choice wisely. Read the affidavits and make a phone call, explain your financial position. Be wary of the 'No-Win-No-Fee" propositions because you will be up for costs.
    in2sunset
    2nd Aug 2016
    5:05pm
    I am currently in the process of challenging a will. One of 8 children, I can only describe my siblings as bludgers and rorters, most on Govt welfare and breeding like rabbits. Me - I went out and worked my butt off, sometimes 3 jobs, usually low paid, never married, never bought new cars, went on holidays, didn't smoke, drink or gamble. Yet my parents left me $500 in their will because I didn't 'need it', and my siblings got the big slice, because they had 'struggled most of their life'. Well my siblings just got so used to bleeding off my parents, they made THAT their chosen life style. Two are chronic smokers, both on disability pension, and still smoke more than a pack a day. They in effect got rewarded for being bums. Very hurtful, and boy is it costly to contest! Is totally wrong. Their affidavit response was filled with complete and utter pack of lies and rubbish, and they cite one of the reasons why they should get more, is because I wouldn't help them out when they asked me for money, etc. and said no, so they had to go to my parents! Never for a moment would they think of going out and getting a job to support themselves. I am the eldest, approaching mid 60's, and I am sure they are hoping for me to drop off the perch so they can get their grubby little hands on my hard work. I just hope and pray I can make an unchallengeable will....
    HarrysOpinion
    2nd Aug 2016
    5:11pm
    There's a chance that they can prove that they have a "need" and you don't. Fairness is not the name of the game in contesting a Will. There has to be a genuine need. Good-Luck !
    Radish
    3rd Aug 2016
    10:14am
    After watching Insight program I was very surprised to find that bludgers may be entitled to more because they need it more.
    Radish
    3rd Aug 2016
    10:10am
    When making our wills the solictor said no Will is ever so watertight that it can't be challenged.
    Radish
    3rd Aug 2016
    10:13am
    I did read somewhere that if death is imminent and you are able to do so (via someone to whom you have given Power of Attorney) withdraw all your money and do what you wish with it. If in a bank account that is.
    OlderandWiser
    21st Dec 2016
    3:57pm
    Not a safe option, Radish. Anything gifted in the last 3 years may be considered to be part of the estate.
    PIXAPD
    3rd Aug 2016
    11:59am
    MY WILL says I am to be buried, so if that is challenged it could become very unhygienic
    JAID
    3rd Aug 2016
    11:59am
    Setting the law asside, apart from dependent minors, partners or dependent former partners nobody should have any claim on anothers' estate. To be involved in more than that is only to have the law sticking its expensive nose into matters which should not concern it.

    If those were the only tests then, with the needs of those dependents satisfied one could and should be able to leave what they wish to whoever they chose.

    The thought that independent adult children should have any claim on their parent's wealth is an image of sheer greed. As if there is not enough wealth without merit in the world.

    Emotionally I am inclined to except one instance recently heard where one who bought and gave a house to their parents while doing well, now in financial strife and toward the end of their career finds their parents have left it to their three other children who have never worked (because they need it more.) It was foolish I suppose to give formal ownership in that case.
    JAID
    3rd Aug 2016
    12:00pm
    Setting the law asside, apart from dependent minors, partners or dependent former partners nobody should have any claim on anothers' estate. To be involved in more than that is only to have the law sticking its expensive nose into matters which should not concern it.

    If those were the only tests then, with the needs of those dependents satisfied one could and should be able to leave what they wish to whoever they chose.

    The thought that independent adult children should have any claim on their parent's wealth is an image of sheer greed. As if there is not enough wealth without merit in the world.

    Emotionally I am inclined to except one instance recently heard where one who bought and gave a house to their parents while doing well, now in financial strife and toward the end of their career finds their parents have left it to their three other adult children who have never worked (because they need it more.) It was foolish I suppose to give formal ownership in that case.
    OlderandWiser
    21st Dec 2016
    3:59pm
    Jaid, I agree. The Family Provisions Act needs an urgent overhaul.
    JAID
    21st Dec 2016
    4:39pm
    Not too likely though is it Rainey. We have arduously built a society of expectation of entitlement.

    My comment missed one thought. Just as I (being adult) do not believe I (or anybody) should have a claim to their parents wealth there is the issue of dying intestate. There is similarly no reasonable excuse for government to then claim the wealth or a share of it, in that case direct descendents or their heirs would be better candidates for automatic equal dispersion after dependent minors and spouses are covered.

    I can have no respect for any law which sanctions or encourages greed nor any which fails to respect the independence of adulthood, free owners of a supposed free society; legally independent but not when it comes to having a claim on the wealth of those who they should have sufficient respect for to be happy with whatever their decision about how THEIR wealth may be dispersed.

    It is immoral and the framing of this law no less.
    PlanB
    3rd Aug 2016
    4:47pm
    When I asked my Solicitor about someone that MIGHT challenge a will he asked if they had every lived with me /us -- ( these were DIL and Family of my deceased Husband) whom had treated him very poorly --they never lived with us except when they bludged on us for a 2 week holiday -- he said unless they had lived with us -- or me there was little chance
    OlderandWiser
    7th Dec 2017
    4:58pm
    Sorry Rod, but the statement ''the court will uphold the wishes of a deceased person unless there is good reason to interfere'' is total garbage.

    The courts have set up a system that ensures parasite lawyers party on what the deceased leave behind and neither claimant nor named beneficiaries can ever end up being dealt with fairly - and certainly nobody gives a damn about the wishes of the deceased. They are irrelevant. Greedy claimants are given a gun to hold at the executor's head and told ''extort for all you are worth'' while their lawyer sits back laughing, delighting in the knowledge that the executor will suffer endless stress and the named beneficiaries can't win no matter how strong their defence, but neither will the claimant end up with much once their parasite lawyer has claimed a whopping fee for doing sweet f-all!

    Both lawyers aim to ensure the legal costs soar as high as possible, and both use the threat of high costs to urge executors to pay ''piss off money'' to the greedy self-entitled claimant. Neither cares what the deceased wanted or why. They care only about helping themselves to a huge chunk of the estate, and ensuring the outcome of every case encourages more greedy, self-entitled parasites to engage parasite lawyers to progress their baseless claims.
    Curious Cass
    5th Jan 2018
    12:50pm
    My daughter holds my EPOA, and I was wondering if she can transfer the title of my property into her name while I am living, and if she will be required to pay stamp duty? Also, will this effect my pension payments?
    PlanB
    5th Jan 2018
    1:00pm
    Cass, I would think? that she would have to have some signature from you -- but it would be wise to ask a legal person if this could happen -- can never be too careful --
    Suze
    1st Oct 2018
    12:55pm
    A lot of people do this sort of scam to be eligible for a pension.


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