Poll uncovers concern at how often wills are contested

Flash poll uncovers widespread concern at how often wills are contested.

Poll uncovers concern at how often wills are contested

Fifty-four per cent of respondents to YourLifeChoices’ Friday Flash Poll: Testing your knowledge about wills said they had a will and it was up to date. But many revealed they had scant faith that a will would not be contested by disgruntled family members and that a costly legal battle might follow.

Estate planning lawyer Rod Cunich confirmed that he was frequently asked about leaving a family member out of a will or not divvying assets equally. In an interview with YourLifeChoices, he said he is regularly asked, “Can I leave someone out of my will?” or “I have been left out of the will, what can I do about it?”

And even the most careful preparation may not prevent an upset relative from at least attempting to contest the wishes of the deceased.

YourLifeChoices member Ozirules wrote: “Having a will is no guarantee the wishes of the deceased will be carried out. Don’t pin all your hopes on a will, try to make other arrangements to protect those you wish to benefit from your assets. And if you find a bombproof way to do this, please let me know.”

Gammer also wrote about the issue of a will being contested: “A will is good, but it can be challenged. My husband’s will was and it took over eight years to come to an agreement with the other parties, by which time around half of the assets were swallowed up by legal fees. Very frustrating!”

MD also wrote about the power of the dollar to start family squabbles: “No matter how well you think you know your family/beneficiaries, when it comes down to the almighty dollar (and divvying the spoils) I've seen too many – supposedly amicable siblings – show their true colours when the cash register rings. I seriously doubt the existence of an incontestable will; the legal eagles will take on allcomers – for the vaguest of any claimants’ justification. Charges apply!”

Oldman added: “I suppose that a will is now a matter of trust that those left will respect the wishes of the deceased.”

The poll revealed that about 34 per cent of the 843 respondents had a will that needed updating, another three per cent had a will under development, while nine per cent did not have a will at all.

Professionals were overwhelmingly used to create a will with 79 per cent opting for this strategy. And 86 per cent said they had discussed their intentions with regard to their will with family.

In relation to delegations or directives: 17 per cent had a financial power of attorney, 26 per cent an enduring power of attorney, 13 per cent a medical power of attorney, nine per cent an advance care directive, eight per cent an enduring power of guardianship and six per cent an end-of-life anticipatory directive.

However, almost one-quarter (22 per cent) had none of these.

Mr Cunich says setting clear end-of-life decisions is important. “Children may have very different views about what their dying parent would want,” he warns.

“Having an advance care directive makes it easier for the children who don’t have to second-guess what the parent would want. They also avoid ‘blame’ for making decisions that aren’t approved of by family members if they are implementing their parents’ express wishes.”

The poll also revealed that 13 per cent had created a prepaid funeral plan and 15 per cent had life insurance.

Are you concerned about your will being contested? Have you thought about end-of-life planning?

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    COMMENTS

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    Paddington
    29th Apr 2019
    11:02am
    We were very careful when doing our wills to prevent any issues for our children and grandchildren but it is still a worry. If there is any possibility of controversy you have to be extremely careful not to omit anyone even one that many would consider unworthy because that is the one who will make a sad time even sadder for the others. It is not just your wishes to be considered unfortunately. You have to imagine the scene when you are no longer there to fix any issues.
    Arvo
    29th Apr 2019
    11:10am
    If there's a genuine need then there's the will of the abandoned family member to contest the testator's Will for family provision, thanks to the Family Provision Act 1982 No 160 - NSW Legislation. Genuine plaintiffs need to apply only. Seek a reputable Barrister first (search on Google or inquire with Law Society in your State).
    Anonymous
    29th Apr 2019
    12:14pm
    But that's the problem, Arvo. The Act is rubbish. The profession encourages non-genuine plaintiffs to apply and once they do it effectively gives them a gun to hold at the executor's head and extort for all they are worth. Unless it's a very large estate that can bear the high cost of a legal battle AND the executor is diligent and willing to invest hundreds of hours and suffer huge stress, there simply is no defence against a greedy sniffling liar.

    The Act is so ridiculously unfair that it doesn't even allow a defence to be put forward until after a farcical 'settlement conference' at which the defendant might be locked in a room with a lawyer and not even allowed to speak to the plaintiff's lawyers, much less the plaintiff. The only facts permitted to be tables to this point are the value of the estate, costs the estate incurred, and the respective means of the beneficiaries and plaintiff (which SHOULD be of little to no relevance, unless the plaintiff is genuinely destitute and was dependant on the deceased)

    Lawyers for BOTH sides want the Plaintiff to succeed because an order against a plaintiff discourages future claims and reduces their revenue.

    I suspect you'd be very hard pressed to find more than one genuine plaintiff in 5,000. Certainly EVERY case I've heard about (and there have been lots) involved a nasty, greedy, self-serving, lying turd demanding far more than was reasonable and a gutter-dwelling lawyer knowingly supporting dishonesty and greed because doing so is profitable.
    Arvo
    29th Apr 2019
    2:54pm
    Mediation is mandatory procedure before going to Court.
    The solicitor provides the technical procedure guidance. The claimant does nothing but provides his reasons for the provision to the solicitor and an Affidavit with supporting documents if any which is then registered with Court and a date is set for the mediation.
    The mediation forum is addressed by a justice of the court with all parties and legal representatives gathered together.
    The Claimant and the Executor sit in separate rooms The rest is done between the opposing barristers. The claimant only speaks yes or no to any offer from the opposing barrister to his/her barrister until an agreement is met or, if no agreement then its up to the barrister to advise on the process of going to a hearing in front of Judge and if it's to be a courtroom hearing a second affidavit is lodged.
    The Claimant, holds no gun to anyone's head, there is no extortion,there are no threats, no face to face glaring, no violence.The Claimant is not involved in the debate and arguments between the barristers.
    There are times when agreement is reached subject to Claimant's legal costs coming out of the Claimant's agreed portion not from the Estate.
    The process is fair and civilized.
    A genuine claimant supports his need for provision with documentation usually from medical sources and evidence of destitution. Their solicitor will check everything out before proceeding with the affidavit and advise the claimant accordingly. That's why a reputable barrister ought to be consulted with first who will then recommend a reputable family law solicitor to guide the claimant.
    Anonymous
    30th Apr 2019
    5:33pm
    Sorry Arvo. You sound like a solicitor or barrister making excuses for a terrible system that is failing dismally. There IS a gun held to the executor's head - figuratively speaking. The lying mongrel claimant spells out demands to which the executor is NOT permitted to reply, and the executor is told 'make an offer the claimant will accept or half the estate goes in legal costs and you endure a year of hell preparing a court case'. No rebuttal of the claimant's lies is permitted. No evidence is sought to verify the claimant's claims of need, much less to establish their treatment of the deceased.

    I hired a reputable barrister and a supposedly reputable lawyer. Didn't make a blind bit of difference to the fact that the claimant was a scammer and a liar who defrauded the deceased, lied copiously on her Affidavit, and used the process to threaten to destroy the lives of innocent people who were only remotely connected to the issue by publishing lies about them.

    IT WAS EXTORTION - PLAIN AND SIMPLE. And I can point you to dozens of executors and beneficiaries who have been through the process and agree 1000% that it's disgusting - the absolute worst kind of injustice imaginable and designed purely to load the pockets of lawyers, with no concern whatever for what is fair, moral, or in line with the deceased wishes - much less for the deceased's reasons.

    Maybe if you stopped defending a bad system and started LISTENING to the victims of it, you would learn just how appalling it really is and how much harm it is doing.

    In my case, the claimant suffered dreadful long-term harm. Got a bundle of undeserved cash that she is splashing frivolously - knowing the taxpayer will support her for the rest of her life if she blows her money on a fancy mansion and expensive car - but lost every single person who cared about her and might have been there in future for a single woman who has no family and nobody to turn to in times of trouble, and has a propensity for making trouble for herself.
    Anonymous
    30th Apr 2019
    5:50pm
    First ESSENTIAL reform needed: Executor should be allowed to refute the claims and request immediate dismissal where it can be shown that the Claimant has lied.

    And where it is alleged that the claimant is lying, the privacy provisions should not protect the claimant from exposure of truth.

    (2) Claimant should NOT be allowed to make unsubstantiated claims about third parties, accusing them of crime and making implied threats to pursue civil or police action against them if their claim is unsuccessful. The Affidavit should NOT contain anything that is not 100% relevant to the Claimant's needs.

    (3) To the extent that a claimant can make claims about their relationship with the deceased and/or the relationship of other beneficiaries, the Executor and other beneficiaries should be allowed to respond to those claims. It is patently unfair that the claimant can rant on for 100 pages about the alleged behaviour of the deceased and other parties are not allowed to respond to those rants.

    (4) The law needs urgent reform in regard to blended families. Where one child in a blended family inherits from a parent from whom the step-child gets little or nothing, the other parent ought to be allowed to compensate for the unfairness by leaving more to children who were excluded from their partner or former partner's estate or received much less.

    (5) The notion that fairness means putting one beneficiary close to the position of the other is disgusting. When one has worked and lived responsibly and the other has bludged on welfare all their life, there is absolutely NO justification for denying the responsible saver on the grounds that they have more than the bludger. And please don't quote the rubbish my lawyer quoted - that it's about saving the taxpayer paying welfare - because the stinking bludger builds a fancy mansion or blows it all in a hurry and claims a full pension anyway.

    (6) The lying claimant should NOT be protected by seclusion, but should be compelled to face the party they are attacking and respond to the tough questions that expose their dishonesty and greed.

    (7) There should be NO second Affidavit. The first one should be IT. My lawyer told me it was too risky to expose evidence of the claimant's lies because she would 'fix' her affidavit before the court case. BS! That should NEVER be allowed. A lie is a lie is a lie. It should stand and the liar should face the consequences. Why is the liar protected such that any settlement has to be discussed without reference to the lies?
    pedro the swift
    29th Apr 2019
    12:20pm
    Seems that the answer is to give all your loot etc to where you want it to go before you shuffle off. Probably hard but maybe doable, and you don't have to disclose where it all went.
    Better still, convert all to cash and spend up big while you can!
    Digby
    29th Apr 2019
    2:01pm
    Agree with you Pedro. Would like to die penniless owing the tax department $5 million.
    Anonymous
    29th Apr 2019
    2:12pm
    Giving it away can be problematical too, because any gift given within 5 years of your death can be considered part of the estate and the court can require it refunded to the estate.
    ozirules
    29th Apr 2019
    4:31pm
    didn't know that O and W...just another erosion of your right to dispose of your own property. Thanks for the heads up though, I will make sure any property disposal will be done covertly.
    Anonymous
    30th Apr 2019
    5:51pm
    Disgraceful, ozirules, because you often don't know when you are going to die and need the money until you meet your end, so you can't gift it well in advance to guarantee five years will pass before you meet your Maker. The system is disgusting.
    BrianS
    29th Apr 2019
    11:54pm
    One area that may be of concern to some people is PETS & ANIMALS.

    If you are going to leave a bequest to the RSPCA then you can sign up to the Pet Legacy program.

    The RSPCA wants to know the details of your pets, food they like, which pets should live together etc & they will find a caring home for your feathered or furry children. Its just another option for those wishing to ensure that their animals are looked after properly when they can no longer look after them.

    https://www.rspca.org.au/get-involved/pet-legacies


    Tags: will, contest, planning,