Who can Challenge a Will?
So, when the legislature stepped in, they stated that a family member could claim against the estate of a deceased, where that person had a morally duty to provide for the claimant.
For many years this turned into a free-for-all. Many Wills put through the Probate process were challenged by sometimes distant relatives, or people who lacked the need but who were driven by greed, and sense of entitlement or even where the Will wasn’t “fair”, in much the same way as a toddler may think it isn’t fair that their sibling got a bigger slice of cake, even though they have more than enough cake on their own plate.
The Courts were then becoming bogged down with all these claims, made worse by the fact that the legal costs of a challenge were often paid from the deceased Estate, so there was nothing to lose for many.
So again, the Legislature stepped in a tightened things’ up so that only dependents of the deceased could make a claim for support from the Estate. While this was bad news for many prospering law firms, it was good news for the busy Courts and Testators.
Preventing a Challenge
Now the question arises of who is a dependant, and who do we really have a duty to provide for? The answer to this varies in each of the States.
However, if you feel that someone could make a claim against your Estate when you are writing your Will but that you do not have a duty to leave them anything, or more than what you have, there are a few things you can do:
Document why you have written the Will in the way that you have;
Consider the use of a Trust to own your assets, but this must be set up specifically with the end in mind;
You could enter a Binding Financial Agreement with your Spouse or Partner. Second marriages are particularly messy in this regard;
Enter a Deed with your family in relation to how you intend to deal with your Estate;
Manage everyone’s expectations while you are still alive;
Gift important items while you are still alive.
Keeping your Will up to date and secure (such as left with your lawyer), to ensure that you’ve considered the changing needs of your family.
Please leave your comments, or get in touch with the writer if you have any questions.
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The aforesaid is not legal advice and is only general in nature. Please obtain advice specific to your own circumstances, alternatively get in touch with the writer.