1. Create an Estate Plan
One way a Will can be disputed is if it is believed that the will-maker was not of sound mine when they wrote it. The younger you are and the better your health, the less likely anyone will be able to suggest that either you wrote the Will whilst under duress, or that the Will does not actually contain your true wishes because your mind was not sound at the time of its creation.
If the person who disputes the validity of the Will is successful, and you had no Will prior, then it will be held that you died intestate (without a Will), and your estate will be divided in accordance with the laws of intestacy. In Victoria, the intestacy laws have just changed and if someone dies intestate, leaving a partner and children of that partnership, the children are not to receive anything, and instead the entire estate goes to the partner. This is a big change to the old law which had the first $100,000 going to the partner plus 1/3, and the remaining 2/3rds going directly to the children.
Hence, it is more important than ever to ensure that you have a sound estate plan, as what may be in the letter of the law may not necessarily be your desired outcome.
2. Explain Unequal Treatment
Another problem can be any unequal treatment you may have written into your Will. You love your family, but that does not mean that your relationship with every child is identical, nor does it have to be. You have every right to bequeath unequal amounts, and to whoever you chose – that is the point of a Will after all.
To explain, let’s look at a hypothetical scenario. Perhaps during your life-time you paid for one of your child’s university degrees, but your other child decided not to go to university so technically you have given them less, and you want to compensate for that through your inheritance. To do so, in your Will you have bequeathed the child who did not go to university $100,000 more than the child who had their university degree paid for. As a result, on face value to the university student it seems as if you have neglected or otherwise underappreciated them and this was not something they were expecting. In fact, to them, you had a very equal relationship with both of your children and this extra $100,000 is something they want to contest.
By leaving a letter to each of your children, explaining what you have left them and why you have done so can remind them of the special relationship you had with them, calm their tempers and stop any potential conflicts from erupting due to miscommunication.
3. Address the Division of Personal Effects
It is easy to split a bank account, it is a lot harder to decide who gets your jewellery, prized coin collection or that rocking chair that has been passed down the family line for generations. Hence, along with dividing up your accounts, it is important you do not forget about your chattels. In fact, some personal effects may have more significance to your family members than any amount of money ever could.
4. Address Loans & Debts
Remember that $100,000 used to pay for one child’s university degree, was that a loan or a gift?
Along the same lines; studying overseas can cost thousands of dollars, so can extravagant weddings, or that house your child wanted to buy so that they could start a family of their own but they were just short of the deposit.
Often parents step in to offer their children loans, gifts or advances to help them cover cost, and although doing so is wonderfully generous, it is very important to address this money in your estate plan. Explicitly state whether the remaining debt is to be forgiven when you die, or if you have decided that instead of giving your other child an extra $100,000 because you did not pay for their university degree, that you are going to reduce the inheritance of the child you did advance $100,000 to for the degree. Again, this will save conflict in the long run.
5. Keep Your Estate Plan Updated!
The last, but arguably most important piece of advice we can give you is to update your estate plan regularly. This means every time a relationship dynamic changes, you acquire (or lose) a large asset, a new child is born etc. For example, a lot of people do not realise that in Victoria, when you re-marry, the Will you had from your previous marriage is considered invalid, and if you do not create a new one, you will in fact die intestate.
Hence, regardless of whether you think a lot has changed, we suggest you re-visit your estate plan every few years just to make sure everything is still as you want it to be when you pass.