Can Maureen prevent her will from being contested?

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Maureen is seeking specialist advice on preparing her will. YourLifeChoices’ estate planning expert Rod Cunich offers guidance. 

Q. Maureen:

I want to know if there is a certain amount I can bequeath so my will cannot be contested.

 …

A: There is a common misconception that if you leave someone a small amount of money in your will that it will prevent them challenging the will. Whether you leave them nothing or something makes no difference. If they believe they are entitled to more, then they can commence proceedings to challenge your will.

Certain family members, by virtue of statutory right, and others (who can demonstrate to the courts that they have an entitlement to a share of your estate) can challenge your will.

In assessing their claim, the court looks at about 18 different factors. It is a complex exercise that involves as much art as it does science.

If the challenger satisfies the court that they have an entitlement, the court will make orders to ensure they receive their entitlement regardless of the sum left to them in your will.

 

Disclaimer: This information has been provided by Rod Cunich and should be considered general in nature. Seek legal advice before acting on this information.

Rod Cunich is a lawyer with more than 30 years’ experience in estate planning. If you have a question for Rod, simply email it to [email protected]

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33 Comments

Total Comments: 33
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    Greed and selfishness have no limits. Maureen. And the greediest of all are the lawyers who will erode the estate with hideous fees, and happily indulge greedy self-serving dishonest applicants who lie to the courts, as long as both lawyers are ”getting a feed”. If the estate is small, the won’t be 18 factors considered at all. The decision will most likely be based on who appears to have the most money/assets. He who has most gets least – no matter why the will was drafted as it was and no matter what the reality of the situation. It’s a SICK and DISGUSTING system designed to benefit lawyers- which is why the plethora of ads of ”no win no pay” representation to challenge a will.

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    My late husband’s will was contested and it took 8 years to finalise with more than half going in the various lawyers’ pockets. His family, from his first marriage, seemed to think that, as wife number 2 and despite our being together for over 22 years, that I wasn’t entitled to anything. He had left his two children a token amount and his grandson a large sum including all his superannuation but that did not satisfy them. I had to defend my situation so incurred high legal fees, too. The estate was built on my assets initially since he came to me with nothing and was unemployed for a year or so in the early days with me supporting him but, no, that meant nothing!!!

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      But the case was not the fault of the lawyer but the first wife. Put the blame where it belongs. The first wife who clearly harboured a grudge against you for 22 years!

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      Gammer, that seems so unfair. When my father died he left the lot to my step-mother including bits and pieces that meant something to my brother and I and had been collected almost 50 years before he met the woman. I would have liked childhood things but she chucked them out or sold them. We didn’t contest it – by the time the lawyers had finished we wouldn’t have got much. Anyway we were OK financially so we just left her to it. I do hope you were left enough to retire comfortably. PS he was a pretty nasty bloke so maybe she deserved the money for putting up with him!

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    If a will is made legally and with a sane mind there should be no way it can be challenged. I don’t care who feels ‘entitled’ or who has the greater need it should be of no consequence. Your assets can be disposed of/squandered any way you wish when you are alive and it should be the same when you are dead. How dare others have a say in how you spend the hard earned fruits of your labour.

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      There will be many who agree with you, me included, but unfortunately it just don’t work that way. The law is a complete ass.

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      Michael Wright the mining billionaire’s illegitimate daughter challenged her father’s will. She received 25 million I think but on appeal it was cut to 16.5 million. I do think that when the person making the will is cruel and vindictive there is a place for challenges but in Gammer’s case the challengers were also vindictive especially since by the time the lawyers take a very large cut there’ll be little left. Now if my father had been a billionaire I may have challenged!

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      Yes and no Ozirules. My friend was cut out of her mothers will for no good reason. None was stated. Her brother and sister were shocked and fortunately shared the inheritance. I think cutting a child from a will is one f the worst thing you can do. What message are you sending. Even if you were estranged, they will likely contest and the ones left will have a long drawn out court case. If you can, give away what you want to who you want before.

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      Sundays, my half-sister was left out of our mother’s will for very sound and clearly stated reason. We always shared everything equally, despite the fact that the only money that existed was left by MY father to ME. When her father refused support, the money I was left was used for her welfare. I got nothing. When her father died, she got $1 million USD. She would not share a cent. Then she bullied my mother and forged her signature to take the little Mum got from her late husband’s estate. Mum changed her will with a clear statement that I had been deprived of my inheritance for my half-sister’s benefit, and she – having had a huge windfall – had no need of more. She hid her money is a US bank account under a false name and cried poverty and she got a large portion of the money. The lawyers took the rest. I didn’t even recover the money I had used to renovate my mother’s house when she was in dire need after my half-sister defrauded her. But my half-sister was showered with sympathy from people who had no idea of the true story but only heard ”I was left out”. My mother went to great pains to explain that she acted in fairness, and not out of malice or spite, and that she loved both daughters equally. That meant nothing.

      The truth is often never revealed in these matters – especially if a settlement happens, which often is the only recourse for a party unfairly stressed and tormented by an unfair and dishonest challenge.

      The bottom line is that far less hurt would result from letting wills stand as is. Sure, a minority may be unfair, but most challenges result in gross unfairness. And the lawyers are the only winners,

    • 0
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      I agree. No matter what others think, if of sound mind, you should be able to leave what is yours however or to whoever you want. What is the point of a will if not to show your wishes?

  4. 0
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    One might be able to contest the Will under the Family Provision Act.
    1) Find a good barrister who will adjudicate over the phone with you if you have a chance to contest. The same barrister will recommend a good family law solicitor who will guide the claimant through the process. One notable barrister is Kim Morrisey. Sydney, NSW.
    2) Consider mediation with the executor using the above as the first step.
    3) if 2) fails follow the barrister’s recommendation
    All of this is not without cost. Beware of, Law firms that, offer “No Win -No Fee” because they do do charge costs. There are up front costs you must be prepared to afford which includes the cost of lodging affidavit with the court. An up front fee of about $2,000. 00 includes the affidavit and initial solicitor expenses. If a reasonable small amount has been left in the will you might be able to negotiate with the solicitor for the structure of upfront fees and final payment of costs . If the mediation process is successful for you it might cost around $25,000 including barrister cost. If,it goes to court then it might cost $50,000 plus.
    Bear in mind that, for the mediation process to be successful in your favour you must be reasonable and not stubbornly greedy.
    Some parents can be very selfishly revengeful They can slander you and defame you in the annexure to the Will. Unfortunately you can not sue a dead person.
    If you have enough in Assets and Income, the family Provision Act will not help you. It only helps those with real need to survive such as the homeless and those needing genuine healthcare. It may or may not help drug addicts and those with criminal history. It all depends on your life’s circumstances.
    My last word of advice is this, if you bring children into this world, you need to look after them to the end. Deprivation is one of the major causes why adult children will contest Wills. If testators are reasonable and generous with equal shares in their Will then everyone concerned should be satisfied.

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      I disagree vehemently, HS. GREED is the reason people contest wills. And many are hideous liars who abused the parent, stole from them, and cheated them. Their need is self-created, and the courts merely punish diligent endeavour – just as the stinking welfare system does. I am heartily sick of this ”poor me – give me more” mentality that takes constantly from hard working, honest people to give to lying, thieving, lazy drop-kicks.

      There is a limit to a parent’s obligation. When one child is a lazy, cheating, lying abusive scumbag, the parent has obligations to the honest, hard-working offspring who look after their aging parent. Just because the latter is more affluent, after years of honest hard work, should not justify depriving them and indulging the other.

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      “There is a limit to a parent’s obligation” OGR?
      No, there is no limit. They brought the child into this world and if the child did not turn out the way they wanted the child to turn out then the parents have failed. because they were the ones who were lazy, probably abusive, violent, non-caring,neglectful and selfish in the way they looked after their child. When the testator does not share the estate in equal shares with his family then this only mirrors the testator’s cruel nature and failure.

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      I agree OGR. Also HS the contesting of wills is not always by offspring. It could be stepchildren who have been more than well looked after during their dependant days but have gone forth and made their own fortune in life and are bitten by the green monster wishing to deny the distribution of assets as per the wishes of the deceased.

      Same for previous marital partners, carers or any other bandwagon jumpers who use the legal system to thwart the wishes of the dearly departed.

      I don’t give a stuff what other people think, I demand the right to distribute my estate as I see fit, end of story. Since the legal system cant guarantee this via a last will and testament then I will seek other methods to ensure the recipient of my assets is the person/persons or establishment of my choice.

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      I repeat, ozirules. “this only mirrors the testator’s cruel nature and failure:… to be fair and of…sound mind.

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      I repeat HS all the above…..if you believe that I am cruel so be it, it’s none of your business how I choose to dispose of my worldly goods. To say everyone who leaves their estate to those who you see as undeserving is ‘cruel and a failure’ shows a lack of understanding of the complexities of human relationships and the variety of reasons a testator may act in a way you disagree with.
      Maybe your life has been blessed with a fairytale existence, good for you, but pull your head in when pontificating on how others should conform to your idea of what’s fair and just.

    • 0
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      There are specialists who can help testator’s nasty mindsets ozirules. Psychiatrists !

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      so now we are failures, cruel and mentally deficient….ha, ha….I’m not sure if you are a tosser or just having a lend of me

    • 0
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      Enough, of your stingy garbage mindset! Besides, “failures, cruel and mentally deficient”…that’s what was implied in my first comment. You just don’t get it, do you? It’s stingy mindsets in Wills that are challenged by those in need.

    • 0
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      HS. It’s their money to leave, it’s not a right of the ones who are left. You’re wrong in putting your own
      values on another.

  5. 0
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    My mother didn’t want to lave my brother anything, but I said that she had to leave him something.
    Her will stipulated 25%, but he claimed well over 50%.
    He saw her three times in her last three years – we took her out of the aged care village twice a week.
    He demanded so much documentation from me (I was executor, and had enduring power of attorney and guardianship for my mother. that I took 6.5kg of documents into his solicitors for copying. they were shocked to see so much!.
    His 101 page affidavit stated among other things that he had no children, but I had his daughter’s birth certificate. He lied and lied right through, claiming that he had nothing. He and his de-facto of 10 years lived in a house (that he built but in her name) with a street value of$1.45M. Their previous house sold for $1.560,000.
    He supplied the documentation requested by my solicitor on the afternoon of the day of mediation.
    Combined legal fees were $63,000, but if we had gone to court it would have been well over $150,000.
    In settlement he accepted a couple of thousand over the 25% of the estate, but it took just on 1.5 years to get there!

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      So the $63K came out of his mediation settlement or the Estate? However, every claimant’s negotiation process starts with the highest reasonable claim which is then argued and negotiated down. Whereas, on your legal side, the starting offer might have been just the 25% or 27% and then worked up. But that’s how it goes with mediation’s negotiations and legal arguments.That’s how the legal professionals earn their money. All of that immense legal cost and personal grief could have been avoided if the testator shared the estate equally.

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      My costs were $29K, my brother’s were $34K. I said that he could have a certain amount and he had to pay his expenses out of his settlement.
      My mother had a hand written journal, and for many years she had written that she hardly saw him – at that time he lived one hour away and I was interstate, but spent 5 -6 days with my parents 6 times a year, before my Mother moved to Sydney three years before she died. My father died first.
      My brother is a builder, but was always “too busy” to do anything for my parents (who both lived well into their 90’s) around the house -even very small jobs.
      Needless to say I have not seen or heard from him since the mediation 5 years ago!

    • 0
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      HS, the testator often has very good reason for not sharing the estate equally. My case was similar to sandiefran’s. I paid over $50K for renovations to my mother’s home when she was in dire need after my half-sister defrauded her. My inheritance from my father was spent 100% on my half-sister, yet she got $1 million from her father. I cared for my mother – at heavy cost – in her final years. My half-sister abused and abandoned her. There was no ”settlement conference”. It was a total farce – with lawyers meeting in the hall to horse trade and me not even knowing what was going on. It was 100% contrived to run up legal bills.

    • 0
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      It does not matter where the opposing barristers meet and how they ‘horse-trade’. What is important, that at each stage you are informed of the outcome of each meeting and whether you accept what’s been offered or not. In one case I know of, it took 4 meetings in the hallway to come to a reasonably satisfactory agreement. That’s how it goes.

  6. 0
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    Just give it all away well before you die and then it’s all gone so there is nothing left for anyone to fight about except for the colour of your coffin. If you give it all away in cash no one will know who got what so the lawyers can’t even claw back anything from anybody. Tough luck if you missed out I say.

  7. 0
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    The big problem with the Family Provisions Act is that the defendant has no defence. The defence lawyer doesn’t WANT to win, because in order for the lawyers to make money, greedy people have to keep making unfair claims. If claimants lose and have to pay the defendant’s costs, others are deterred from making claims. Those no-win/no-pay ads are designed to ensure every greedy, thieving drop-kick no-hoper tries to steal someone else’s rightful inheritance, and does so at no risk. The lawyers agree that the claimant MUST win so that there are lots of cases of drop-kicks who claim ”need” getting windfalls to quote to solicit more greedy drop-kicks claiming ”need”. If justice prevailed, there would be a string of cases of claimants losing and having to pay costs and future claimants would think twice. Can’t have that! The lawyers and the judges would all lose.

  8. 0
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    The question was….’I want to know if there is a certain amount I can bequeath so my will cannot be contested?’ The short answer would have been NO!

  9. 0
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    I read recently that the most unambiguous way to prevent a will being contested is for the testator to make a video recording outlining their wishes.

    A video recording of you explaining your decisions, or simply acting freely and independently, can help refute any charges that you weren’t of sound mind, or were being unduly influenced, when you signed your will.

    Making a video of you and the witnesses signing your will is also very useful. If the video makes it clear that you are rational, know the contents of your will, and are using the will to express your own wishes and not that of others, it will be a great help in dissuading someone from suing later—or defeating a claim if someone does contest your will.

    • 0
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      This will not prevent claimants from contesting under the Family Provision Act 1982 No 160 – NSW Legislation. Read the Act to understand why. Annexures may be ignored by the Court. By the way, videos can be tempered with like written Wills can be forged.

    • 0
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      Is HS a solicitor? Is that why he doesn’t agree that a persons will should be followed? 🙂


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