Informing clients of potential Will disputes or stopping someone from contesting a Will in Australia is just as important as writing one. At ORG, our experienced Wills and Estate Lawyers take the time to discuss your personal and financial circumstances to identify if someone can contest your Will.
Then, we will work with you to implement different strategies to eliminate or reduce the risk of someone claiming the Estate. We believe in empowering our clients by educating them and sharing our knowledge, so they feel confident in their decisions. You can rely on us to offer honest and accurate advice tailored to your situation.
This blog will offer advice on how to stop someone contesting a Will, including:
- What the court takes into consideration during a dispute
- Top 5 ways to prevent someone contesting your Will
- Who normally contests a Will
- Who can legally contest a Will
What the court takes into consideration during a dispute.
When contesting a Will in Queensland, the Court will review the application and determine if the deceased has provided adequate provision to the person applying. Adequate provision is not easily defined because each family situation is unique and requires careful consideration.
However, if a spouse, child or dependent of the deceased relied on them for financial support and did not receive adequate provision from their Will, they might have grounds to contest it. Therefore, to prevent a claim from arising, you must know what factors the court considers when determining an application, as outlined below;
- The size of the Estate – is it large enough for the applied provision?
- The applicant’s age.
- The applicant’s health, financial and living situation (large education fees, unemployment or disability/illness).
- The nature of the applicant’s relationship with the deceased.
- If the applicant contributed in any way to the deceased’s Estate.
- The applicant’s mental health or conduct (addiction etc.)
- If there are any competing claims on the Will.
- The named beneficiary’s financial situation and any previous gifts provided to either beneficiaries or applicants.
- If any verbal agreements were made regarding the Estate.
- If the deceased provided the applicant with financial, physical or emotional support while they were alive.
- If the applicant has any other liable people in their life to support them.
- Any other relevant events or matters.
ORG Solicitors can ensure that all of the above is considered when drafting your Will and Estate Plan, so you are protected from any potential disputes. Book a free initial consultation or keep reading to learn more about how to stop someone contesting a will in Australia.
Top 5 ways to stop someone contesting a Will.
Even though it’s near impossible to guarantee someone won’t contest your Will, there are measures you can take to help prevent it and ensure your wishes are respected.
- Make sure that everybody that is eligible to contest your Will receives a reasonable amount in your Will.
It sounds simple, but you’d be surprised how many overlook this step when creating their Will and Estate plan. Ensuring that you leave adequate provision for all appropriate family members and loved ones is one of the easiest ways to prevent a dispute – especially if you think they could contest the Will after you pass.
Of course, you don’t have to make equal provisions for each person, but we highly recommend communicating the reasoning behind your choices. Having a comprehensive statement about your testamentary intentions will create more understanding and prevent a claim from arising.If you don’t want an eligible person to receive any benefit, the court may disqualify them from receiving provisions from your Estate because they were either;
• estranged from you;
• defrauded you;
• assaulted you;
• or was otherwise of bad behaviour to you or your family - Place your assets in a Family Trust (or know as a discretionary trust)
A Family Trust is an agreement where a person or a company agrees to hold assets for someone else’s benefit – usually their family members. Families often set one up to own assets. In some circumstances, Trusts are ideal for asset protection or income tax planning purposes. The only assets that are ‘up for grabs’ when you contest a Will in Queensland are those in someone’s Estate (personal assets such as their house, money in the bank, shares etc.). If the deceased person held assets in a Family Trust, they would be excluded from an Estate contest. Occasionally, you can also transfer Estate assets into a Family Trust to diminish the Estate’s value, subject to specific legal, financial and taxation advice. - Choose a beneficiary to share ownership of any major assets and accounts.
Significant assets can include property, land, vehicles, bank accounts etc. When you elect someone to share ownership of one or more of these assets, they will pass directly to the surviving owner upon the owner’s death. Another option is to create a Binding Death Benefit Nomination (BDBN) to designate someone to receive your life insurance or superannuation payouts. This document also prevents these amounts from forming part of your Estate, protecting them from a dispute. - Provide gifts to potential beneficiaries during your lifetime.
The Court considers the size of the Estate when determining whether to make provision for an applicant. So, if you gift your Estate, or part of it, to intended beneficiaries while you are alive, you deplete the size of the Estate. Therefore, this could prevent or minimise a claim being made. - Organise a free consultation with ORG Solicitors for professional Will and Estate advice.
Our trusted Wills and Estate Lawyers have extensive experience and knowledge with a variety of clients, from modest Estates to more complex scenarios. We can help you:
• Draft a comprehensive Will and Estate Plan to protect your family’s inheritance from creditors and family breakdown.
• Implement strategies to reduce the risk of litigation against an estate.
• Create a testamentary discretionary trust to help with asset protection and tax minimisation.
• Understand Will, Estate and Probate laws.
• Offer relevant advice when choosing your Will executors and guardians.
• Structure your estate to reduce the tax your estate or beneficiaries may be liable to pay.
Who normally contests a Will?
Contesting a Will, also known as making a family provision claim, is the process of legally disputing how the Estate has been distributed. For example, someone close to the deceased believes they did not receive a fair share based on their relations or agreements made when they were alive.
Family Provision Claims are typically made by the deceased’s children, step-children, spouses or de-facto partners, and occasionally ex-partners. Whether or not they are successful is entirely up to the Court’s discretion.
Who can contest a Will?
In Queensland, there are strict laws surrounding who can contest a Will, limited to:
The deceased’s spouse, including:
- Legally married couples
- De Facto couples
- Same-sex couples
- Registered partnerships
- A former spouse (in limited circumstances)
The deceased’s children, including:
- Biological children;
- Adopted children; and
- Stepchildren
The deceased’s dependant, defined as:
- “substantially or wholly maintained or supported” by the deceased person at the time of their death; and
- be either:
- A parent of the deceased;
- The surviving parent of an infant child of the deceased; or
- A person under the age of 18 years.
LEARN MORE ABOUT CONTESTING A WILL
Proven strategies to protect your Estate
So, how do you stop someone contesting a Will? Again, there is no guarantee. However, putting strategies in place through a well-considered Will and Estate Plan will hopefully prevent a successful contest.
Since 1928 ORG Solicitors have helped South East Queenslanders write well-considered Will and Estate plans that reduce the risk of dispute. We have assisted all walks of life and provide valuable advice so you are fully aware and protected against all possible scenarios.
Reach out to us today or book your free, no-obligation consultation today.