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Where There’s a Will – There’s a Challenge!

3979 columnist Terry Carson
3979 columnist Terry Carson

 Read more articles from Terry here.

Most lay people probably think that a solicitor’s role in administering deceased estates is very dry and dull work.  Actually, if you are a committed people watcher, it can be very fascinating as you see human nature at its best and worst.  It is a privilege to be associated with a loving family helping them sort out legal issues during a difficult grieving process.  It can be a trial when everyone is fighting over money and the solicitor’s role is more like a rugby league referee trying vainly to stop an out of control punch up on the field of play.

Everyone who has reached the age of occasionally pondering on their own mortality has probably been told ad nauseam of the need to have an up to date will.  That advice still holds good.  If you have not made or changed your will for some years it pays to be aware that recent law changes have made the careful consideration and preparation of wills most important.  This is particularly so if you have ever been in more than one marriage or relationship, or you are not intending to treat all your children equally. At the same time, challenges to wills by disgruntled beneficiaries seem to have gained a new lease of life.

A recent legal article identified at least fourteen different pieces of legislation that empowered a court to interfere in the carrying out of the intentions expressed in a will.  However, the three most common grounds for challenging are will are:

Family Protection Act Claim

This is where close relatives can challenge a will if they consider the will-maker had a moral duty to have made greater provision for them.  This legislation originally protected wives and children against the arbitrary actions of will-makers who had left their families with inadequate support.  These days, the dispute is often between the adult members of the first family and the deceased will-maker’s second wife or partner.  Although almost every judgment delivered under this piece of legislation starts out saying it is not the intention of the court to rewrite a will that is what often happens in practice.  The view of a judge, who does not know the family at all as to what is morally appropriate and just, is substituted for the views of the will-maker who may have known his/her family only too well.

Testamentary Promises Act Claim

This is where someone claims that they had provided significant services to a deceased will-maker, relying on a promise that they would be rewarded in the will.  The classic sort of case was where nephew Tom worked on Uncle Fred’s farm like a slave with no pay for thirty years, relying on the statement that “one day Tom, all this will be yours.”  Uncle Fred dies and Tom finds the farm is left in the will to the local home for stray cats.  The promise relied upon does not have to be in writing or sometimes even made directly or expressly.  Its existence may be inferred from conduct.  The problem with these cases is that the will-maker is not around to refute the story put up by the claimant.

Property Relationship Act Caims

This is biggie in claims at the moment.  This legislation and how it operates can be highly complex.  Good legal advice is needed.  In the very simple terms a surviving partner/spouse has to decide whether to accept the provision made for them in the will or challenge the will in court.  Generally, if the will does not to leave at least 50% of the relationship property to the surviving spouse/partner, a claim will be worthwhile.  Issues of contracting out agreements made during the parties’ lifetimes and identifying separate and relationship property arise.  If there are previous spouses/partners in the mix these cases can become most interesting.  Of course if you have entered into Family Trusts, LAQCs and other structures to make your fortune, during the recently ended property boom, they become even more complex.  These claims make good retirement funds for lawyers.

There is no guarantee that the will you prepare will ever be completely watertight and unable to be challenged in a court but if you spend time carefully going through all the possibilities with your lawyer and keep the will up to date when family circumstances change, you will improve your chances of having your wishes carried out.

If all else fails, or you can’t be bothered with lawyers, rely on the one estate planning technique that never fails – spend the kids’ inheritance during your lifetime!

Disclaimer: This information is of a general and summarised nature only.  It should not be used as a substitute for obtaining personal legal advice.

Terry welcomes feedback and comments and can be contacted through his website