Why challenge to will is inevitable

Jacob* wants to block an estranged daughter from his will while providing for a disabled son and his brother. He asks estate planning lawyer Rod Cunich if that is possible.

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Q. Jacob
My wife and I have three children – two boys and one girl. The girl left home at 16 and we have had no contact with her for the past 25 years – except for a brief period 15 years ago when she was hospitalised and borrowed money from us without repayment and again at her grandmother’s funeral. We wish to ensure she has no claim on our will. Our eldest son is mentally disabled and lives with us. He will need our home to continue any stable existence, with his brother as carer and joint owner. How can we ensure this happens?

A. There is nothing you can do to prevent your daughter challenging your will. All children have a statutory right to do so. She has no right, however, to a particular share of your estate. Even though she has a right to challenge your will, she would need to satisfy a court that she is entitled to a share when all the competing interests are considered. Your daughter’s chances of success depend on a court considering more than 20 issues relating to whether adequate provision has been made.

A long estrangement with a daughter (at her instigation) and the health and welfare needs of your son are two important factors a court will take into consideration, but neither is decisive.  At the very least, you should consider preparing a statement (in your own words) setting out all relevant facts, so they are available to any court that is asked to investigate the issues.

The legislation in each state makes specific provision for such a statement, and expert legal advice is required to prepare such a statement appropriately.

Notwithstanding my earlier comments, there are numerous strategies to consider that may assist you in achieving your wishes, but you need the advice of a specialist estate planning lawyer. You can find accredited specialists through your state law society or law institute.

You may be able to financially assist your son ‘outside’ your will through the use of superannuation, joint asset ownership or the use of trusts established while you are alive. Some or all of these may be beyond challenge by your daughter.

* Jacob is not his real name.

Rod Cunich is a lawyer and author with more than 30 years’ experience who specialises in estate planning. If you have a question for Rod, simply email it to [email protected]. His book, Understanding Wills and Estate Planning, has recently been updated and is available from all good bookshops.

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Disclaimer: All content on YourLifeChoices website is of a general nature and has been prepared without taking into account your objectives, financial situation or needs. It has been prepared with due care but no guarantees are provided for the ongoing accuracy or relevance. Before making a decision based on this information, you should consider its appropriateness in regard to your own circumstances. You should seek professional advice from a financial planner, lawyer or tax agent in relation to any aspects that affect your financial and legal circumstances.

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