The Effect of a Clause in a Will that Prevents a Claim
Even if you get professional assistance when writing your will, there is no guarantee that your estate won’t be contested.
It’s not uncommon for the testator of a will to include a clause that prevents individuals from making claims against their estate. It is, however, important to note that such specifications are not always enforceable. If an eligible person has a legitimate claim against your estate and decides to lodge a family provision claim, they may still have adequate grounds to contest your will successfully.
Often, testators will also attempt to discourage individuals from contesting their will by leaving them a small sum of money. This can end up being ineffective as, if they feel they haven’t received sufficient provision, the recipient may still pursue a claim against your estate.
So, how can you make sure your final wishes are enforced?
There are several steps you can take when creating your will to help mitigate the chances of it being contested or challenged after your passing.
Strategically Structure The Ownership of Your Assets
To ensure that your assets are inherited as you wish, there are certain steps you can take involving their legal ownership.
If two individuals hold property jointly when one of them dies, the deceased’s share of the estate will be passed onto the remaining tenant, without the need to reference their will. This can be a highly effective way of making sure that the beneficiary of your choice will inherit your main assets.
Similarly, under the law of joint bank account survivorship, you can ensure the individual you want to inherit your finances does. When two people have shared ownership of a bank account, and one passes away, the surviving joint owner will receive the deceased’s share. Typically, your will does not need to be referred to during this process.
Action can also be taken to ensure your superannuation is administered as per your wishes by completing a “binding nomination”. This involves appointing a particular beneficiary who, in the event of your passing, will be entitled to your superannuation benefit.
Get Reliable Legal Advice
By gaining reliable legal advice and guidance from an estate professional, you can ensure that all relevant variables are considered during the construction of your will.
Although you may prefer to completely cut someone out of your will, to avoid your estate being contested, it’s often still important to provide him or her with adequate provision. While this may go against your true testamentary wishes, it can help to prevent an eligible person from building a meritable case against your estate.
For provision to be considered ‘adequate’, it does not have to generous as long as it is sufficient and modestly reasonable.
When using this strategy, you will likely benefit immensely from seeking legal assistance from a lawyer who is experienced in the field. This is because, when deciding on the amount of provision that will be considered adequate, you need to take numerous specificities into account. By gaining professional advice, you can ensure your will is comprehensive and carefully crafted to prevent claims from being made.
Transfer Certain Assets While You’re Still Alive
Another option is to transfer the ownership of your assets to beneficiaries while you’re still alive. This approach embraces the theory that if you have no assets to be inherited, a claim can’t be made against your estate.
However, such a strategy typically involves a high level of risk. Once the transaction has been completed, there is no saying that the recipient of your assets will actually support you. They become the legal owner of the assets involved and, technically, can manage them as they wish. Your existing entitlement to Centrelink benefits may also be impacted and you could, potentially, no longer being eligible for a pension.
It’s important that, if you are considering using this strategy, you are well aware of the complications that may arise. If you do not make a considered decision, you may be forced to experience severe hardships that could have otherwise been avoided. Because of this, it’s crucial that you speak with an estate lawyer experienced in the field to discuss your options.
Speak With a Professional Today
For expert advice and assistance during every stage of your will dispute, speak with an experienced estate lawyer from Hentys. Our specialised team are dedicated to helping you achieve the outcome you deserve and are prepared to act on a No Win No Fee basis. To find out more, get in touch with us today.
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