We have all read about high profile disputes, over the assets left in the Wills of high net wealth individuals. The families of Richie Benaud, Dick Pratt, and Lang Hancock have all had difficulties sorting out their estate issues.
Unfortunately, no lawyer can give assurances to Will makers that someone in their family will not make a claim against their estate for a share, or larger share than the Will maker deems appropriate. All the Will maker can do is seek advice about the best way to try to protect the distribution of assets to those beneficiaries the Will maker seeks to benefit, and ways to make it difficult for others to upset the the Will makers testamentary wishes after their death.
A Will maker needs to consider the possibility that their estate may be contested in the future, at the time of providing instructions to their lawyer to prepare their will. Steps can then be taken to minimise the risk of a successful claim, by the preparation of a statutory declaration by the Will maker setting out the resons why the Will is made in a certain manner. That can include details of disentitling behaviour by a “black sheep” child, or a history of gifts provided to one potential beneficiary during the Will maker’s lifetime. Other specific reasons of the Will maker can be set out in the Statutory Declaration that will then be evidence of the Will makers mindset, at the time the Will was being made. A Judge that is later being asked to upset a Will makers testamentary disposition, will give appropriate weight to the issues that the Will maker swears to in the Statutory Declaration. Without the Statutory Declaration, it is very difficult to establish what may have been in the Will makers thoughts, sometimes years before death, and the subsequent hearing of any contested Will dispute.
Other steps such as placing assets into a family trust while alive, or testamentary trust upon death, or using a binding death benefit nomination to ensure that superannuation assets go directly to a named reipient, and don’t ever become estate assets, can be part of the solution.
Everyone benefits from good estate planning. Large portions of an estate can be consumed by legal fees when a family provision claim is brought against an estate. We at Bridge Brideaux have extensive experience in disputed estates, and in advising Will makers on the steps available to try to minimise the risk that your estate may be contested in the future.
Should you feel that you have been improperly left out of a Will, or should you be contemplating making a new Will, our friendly Solicitors can provide prompt, courteous and experienced advice in all estate matters.