Whilst most Wills pass through probate without an issue, some are challenged. Wills can be challenged for a variety of reasons (i.e. because the deceased lacked capacity, the Will was not properly witnessed; the deceased acted under duress) but most commonly Wills are challenged because people are not adequately provided for within the Will or are left out altogether.
Your Will outlines your intention as to how you want your assets to be distributed on your death.
The Courts' wish is to protect your right to leave your assets to whom you choose. Your Will, however, can be challenged in certain circumstances.
Under the family provision laws, your Will can be altered or overturned if you fail to provide for someone the Court considers you had responsibility to provide for.
You may however be able to protect yourself against a challenge by ensuring that your Will is properly drafted.
Below I will outline the law surrounding family provision claims and when they occur and will then provide some tips on how to protect you from such claims.
The law
Individuals who have been left out of a Will or believe they have not been adequately provided for in a Will may make an application to the Court for further provision from the deceased person's estate; that is, they may seek to challenge the Will.
Under the Succession NSW 2006 (NSW), certain people can apply for an order for provision to be made out of an estate for maintenance, education and advancement in life.
Time limits apply
Challenges can only take place within 12 months after the death of the person. If however the person challenging the Will can show sufficient cause, the Court may, in limited circumstances, permit a claim after that time.
Who can Challenge?
In order to apply, the person must be either:
· A spouse of the deceased;
· A de facto spouse;
· A child of the deceased (biological or adopted);
· A former spouse of the deceased;
· A grandchild of the deceased (if at any time was wholly or partially dependant on the deceased); or
· A person who was living with the deceased in a close personal relationship at the time of death. Close personal relationship is 2 adult persons who are living together and one provides the other with domestic support and personal care.
A person may an eligible claimant, but this does not mean that the Court will automatically grant further funds from the estate to be granted to the claimant.
The Court will only make an order in the claimants favour if the Court considers that the person has been left out of a will without adequate provision. In deciding the issue, the Court must consider the following:
· The financial position of the person challenging the Will;
· The size of the estate and the deceased’s intentions;
· The relationship between the deceased and the person challenging the Will;
· The financial circumstances of all other beneficiaries to the estate;
· The age of the person challenging the Will and whether they have any disabilities
· Whether the person challenging the Will made any contributions to the estate;
· Whether the deceased assisted the person challenging the Will;
· The deceased’s character and conduct; and
· Any other matter the Court thinks relevant.
Order made by the Court
If the Court consider that the person has been left out of a Will without adequate provision after taking into account the above considerations, the Court will determine what provision should be made out of the deceased’s estate and in effect, re-write the Will.
Considerations when making a Will
There is therefore a possibility that a claim will be made after you pass away. There are important steps that you can take upon drafting your Will which should reduce the chances of the Will being challenged.
If you are considering leaving a family member out of your Will then you should consider outlining the reasons why you intend to leave the person out of your Will. This may reduce the likelihood of a challenge to your Will. Your statement of reasons should be clear and concise.
For instance, you may have already gifted the person a portion of your assets during your lifetime such as a house or a loan. Without such reasons outlined in your Will, the person may feel upset and may wish to challenge the Will as a result.
If you have not spoken with the person for many years and there is no longer any relationship this is important to point out in your Will. The executors will then be able to argue your intentions to the Court if the Will is challenged.
Why do the Courts allow Wills to be challenged?
People often query why a Court would allow a challenge to a Will when a testator has clearly outlined their testamentary intentions in their Will.
There are important policy justifications for the Court's willingness to effectively "re-write" a Will. If, for instance, you decide to leave a child out of your Will who has significant medical needs and you pay for their daily care during your lifetime, the Court is of the opinion that the estate assets should provide for their ongoing needs.
If the Court allows the Will to remain as is with no funds being left to the child, the child will be dependant on the public purse for daily support.
The Court will therefore consider all circumstances including the needs and financial position of any other beneficiaries to see whether the Will should be "amended" in order to adequately provide for a child with such needs.
Thoughts to consider
Whilst it may seem unfair for a Court to amend a Will in certain circumstances, there are important reasons why such Will challenges are justified.
If you are considering leaving a child or another person for whom you take care of or have a close personal relationship with out of your Will, be sure to outline your reasons for doing so in a clear and straightforward manner.
This may reduce the chance of your Will being challenged or at least, the Court will know your clear intentions for doing so should a challenge occur.
Contact Watts McCray Lawyers – Norwest on 02 9680 6800 for further information.
