contested wills
A Will is a legal document that contains instructions on how a person wants their property to be distributed after their death. Yet despite the importance of such a document, many people die without a valid will (intestate), or die with a will that is ambiguous or defective. However, with today's complicated family arrangements, it is vital to ensure you have a valid legal will that specifies how you want your estate to be divided upon your death.
No valid will?
If you die intestate, an executor will be appointed to administer the estate according to a legal “formula”. In NSW this is stipulated in the Wills, Probate and Administration Act 1898. However, in each State, the rules of intestacy are similar, and consist of a clear hierarchy that starts with the immediate family. At the top of the hierarchy are the s urviving spouse and/or children, followed by the nearest living relatives. If there are no relatives, then the estate goes to the government.
The most obvious problem with the “formula” is that you have no say over who administers your estate, or the beneficiaries to your estate. It leaves out friends you care about and charities that you want to contribute to. It may even be completely contrary to what you want. For example, difficulties will arise in a situation where a couple is separated and the will has not been changed. They may not want their spouse to receive any benefits under their will, however if they die intestate, or the valid will is not up-to-date, then the spouse may be the first benefactor of the estate. There are also examples of parents not wanting their drug-addicted children to receive any of their estate, but without a valid will, the child is almost the first on the list when the estate is distributed.
Furthermore, as each State in Australia has slightly different rules about how the deceased's estate should be administered, there may be issues if assets are spread across several States.
Homemade will?
Preparing a “homemade” will is not extremely difficult and there is an abundance of information that will instruct you on how to do so. However, it is important to realise there are several formal requirements that must be adhered to when creating a will, otherwise it may not be valid. For example, the w ill must be in writing (hand-written or typed) and it must be signed (or the signature acknowledged) by the will-maker in the presence of at least two witnesses. It is usually not recommended that you attempt this kind of will without some assistance from a legal professional, as there is a high risk of writing an invalid will.
These days, there are also many “do-it-yourself” will kits available for sale. For some people, the generic option is sufficient, however the more complicated the family arrangement; the more important it is to seek legal advice when writing a will. The simplistic nature of the DIY option may not cover everything you would want to include in your will.
De facto rights?
In Queensland and New South Wales, a de facto has the right to make a claim on the estate of their deceased partner, even if the de facto is not included, or not adequately included, in the will.
The general definition of a de facto relationship is one in which an unmarried couple has lived together for at least two years in a genuine domestic relationship. A de facto relationship can be same-sex couples, and generally involves a couple living together in a situation resembling a marriage. To determine whether a relationship is actually de facto, certain circumstances must be taken into account. These may include the length of the relationship, whether the couple has children, the degree of financial dependence or interdependence within the relationship and even the performance of household tasks. The de facto partner of the deceased may have to prove to the court they were in a genuine de facto relationship before they can make claim to the estate.
Challenging a will?
If you are unhappy with some provision of a will, eligible parties may be able to challenge it on a number of grounds. In NSW, an “eligible person” is defined in the Family Provisions Act 1982 and includes: a spouse, a former spouse, a child, a de facto, a dependent grandchild of the deceased and even members of the deceased household.
A will can be challenged for several reasons, eg if the will is an old one and no longer valid; the will was interfered with after it had been signed; the will was not made with a free mind because the deceased was somehow manipulated when making the will, or did not have the mental capacity to make a will; or if you were not fairly provided for in the will and believe you are entitled to more. There is a time limit on challenging a will – in most states it is about 18 months after the death of the deceased.
If you would like more information on Wills and Probate, or have any questions about anything discussed in this article, do not hesitate to contact us anytime, on 1300 663 612.
