How to Effectively Construct a Will to Reduce the Chance of a Contest
Planning for the administration of your estate can be a complicated process and, once individuals have been made aware of your testamentary wishes, there’s no saying they will be pleased.
When deciding how you would like your assets to be distributed, it’s crucial that you consider how your will is going to be received by beneficiaries. If an individual believes they’ve been mistreated or that your will is invalid, they can pursue a case against the estate. When a claimant is successful, your testamentary wishes might be altered to better reflect the Court’s ruling.
While it’s unlikely that your estate plan will be disregarded altogether if a will contest has merit, your desires may not be acted out in full. Thus, constructing your will with this in mind is vital if you want to achieve an outcome that is closely aligned with your true intentions.
By being aware of circumstances that are likely to inspire a will contest, you can pre-empt potential claims and take steps to reduce their viability.
On What Grounds Could Someone Contest a Will?
There are various circumstances that may prompt an individual to pursue a case against your estate. Claims will generally fall into one of the three following categories:
- The claimant believes that they didn’t receive adequate provision. In such instances, an individual can argue that they were wrongly excluded from a will. If a claimant was included in a will, they might propose that the funds they were allocated are not sufficient and fail to provide them with proper maintenance and support.
- The claimant argues that the deceased didn’t have the testamentary capacity to make a valid will. This means they believe that the testator wasn’t of ‘sound mind’ when creating and validating their will. For a claim of this nature to be successful, it must be proven that the deceased:
- Was unaware of a will’s purpose;
- Didn’t know that they were writing their final testament;
- Was unable to identify close family members;
- Didn’t understand what they owned;
- Was unable to make decisions regarding the distribution of their property.
- The claimant believes that the testator was coerced or under undue influence when writing and signing their will. When pursuing a case on such grounds, a claimant argues that the deceased was vulnerable and manipulated into leaving most, or all, of their estate to a certain individual.
Who Can Contest a Will?
After probate has been granted, there are numerous people who may feel they are entitled to a greater share of your estate and, thus, can make the decision to contest your will. When doing this, they will submit an application for a family provision order against the estate.
Cases of this nature are governed by the Administration and Probate Act 1958 (Vic), which states that those who wish to lodge a claim must be considered an ‘eligible person’. An individual will is classified as being an eligible person if they are one of the following:
- The spouse or domestic partner of the testator at their time of passing;
- A former spouse or former domestic partner of the testator;
- The deceased’s child, including:
- Biological children;
- Adopted children;
- An individual who the deceased treated as though they were their child.
To be considered a child of the deceased, a person must also be under the age of 18, a full-time under the age of 25 or suffering from a disability.
- An adult child of the testator;
- The deceased’s grandchild;
- A member of the deceased’s household;
- A spouse or domestic partner of the deceased’s child. Such individuals are only eligible if the testator’s child has passed away within one year of the deceased’s death.
Situations Where Will Contests Can be Anticipated
There are various circumstances that often lead to a will being contested. By understanding what drives individuals to make family provision claims, you can construct your will in a way that aims to combat common igniting factors.
Leaving Your Inheritance to a Distant Relative, Friend or Charity
When close family members are excluded from mention in a will, they are often inclined to contest the estate in a bid to gain what they believe they’re entitled to. Their motivation to do so is made all the more prominent in cases where they’ve been disinherited in favour of a distant relative, social friend, charity, or the like.
If a will is disputed on such grounds, the court will consider:
- The relationship between the claimant and the deceased, including its nature and length;
- Whether the deceased had a moral duty or obligation to provide for the claimant;
- The size and nature of the estate in question;
- The financial needs of the applicant and other beneficiaries;
- Whether the claimant or any beneficiaries have a physical, mental or intellectual disability;
- The claimant’s age;
- Whether the applicant received any significant gifts from the deceased prior to their passing;
- Whether the claimant relied on the deceased for proper maintenance and support;
- Any other matters that the Court deems relevant.
Distributing Your Estate Unequally Between Children
The unequal distribution of assets among children is a common instigator of estate disputes and, in many cases, can create or amplify existing family conflicts. Children who feel that their sibling was unfairly favoured may decide to contest the estate, especially if the allocation of assets is incredibly disproportionate.
If the child who receives a greater portion of the estate has special needs, the Court will take this into account when reaching a final verdict. They will also consider the factors mentioned in the previous section, including whether the testator had a moral duty to support the applicant.
However, it’s important to note that even in situations where a testator distributes their estate equally between their children, there is no guarantee that their will won’t be contested. Estate disputes can still arise if an individual believes that they are deserving of a greater share of the deceased’s assets. This is often the case when one sibling had a closer relationship with their parent or provided them with more assistance and support in the time leading up to their death. Because of this, they feel they are entitled to a greater portion of the estate than a sibling who was less present in their parent’s life.
Making a Sudden or Significant Change to Your Estate Plan
When a testator makes changes to their will right before their passing or significantly alters their distribution of assets, those who are negatively impacted may contest the new will.
In such instances, claimants will often argue that the deceased’s new wishes are invalid. They may do so by claiming that at the time the new will was written and signed, the testator didn’t have the testamentary capacity needed to create a legally binding will. The validity of a deceased individual’s will can also be challenged on the grounds that they were unduly influenced or coerced into making the changes in question.
How To Reduce the Chance of a Will Contest
There are various steps that can be taken to lower the likelihood of your will being contested so that your testamentary wishes are closely aligned with the way your estate is actually administered. Some of these strategies are as follows:
Include a No-Contest Clause in Your Will
A no-contest clause aims to deter potential claimants from contesting your will. It does this by stating that if a beneficiary decides to pursue a claim against your estate and loses, they will be completely disinherited.
For a clause of this nature to be effective, the testator needs to leave the potential claimant something of value. While such choice may be unfavourable, it could ultimately discourage the beneficiary from attempting to gain an even larger proportion of your estate.
Leave Adequate Provision to Potential Claimants
While some testators may prefer to leave potential claimants with nothing, providing them with provision that is adequate can help avoid such individuals contesting the will. This is because if the Court deems the assets that have already been assigned to a claimant as sufficient, their case against the estate will likely be unsuccessful.
It’s important to note that, while the provision given needs to be adequate, it doesn’t have to be significant. By speaking with an estate professional, you can determine an amount that is modestly reasonable in your specific circumstances.
Explain the Reasoning Behind Your Estate’s Distribution
By providing beneficiaries with an explanation regarding the distribution of their estate, testators can often reduce a potential claimant’s motivation to contest their will.
However, if you decide to proceed with this strategy, it’s crucial that you do so in a way that isn’t simply going to upset individuals more. There is no saying that those involved will be pleased with your reasoning and, unfortunately, it could potentially heighten tensions further. As such, it’s essential to ensure that any explanations you include are factually correct, free from bitterness or spite and respectful.
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