Can your Will be challenged?

Aug 14, 2017

It is wise for any person concerned about this issue to seek to try to ensure that on your death, your assets go to those you want to be benefitted, as it is not possible for you to direct what occurs with your former net assets after you have passed. When making your Will, you should be aware that your best intentions and directions may be challenged through the courts by a disgruntled relative or other person claiming to be reliant on you in one way or another after you die.

You may not know that since 1998, people who are not included as beneficiaries by a Testator in her/his will, or beneficiaries who feel unfairly dealt with under a Will, can legally challenge and sometimes, successfully make a claim against another person’s estate, including financial assets, real property and personal possessions.

Victoria is now unique in Australia as to the test for a claimant’s entitlements. The test in Victoria is that a claim may be made and possibly succeed if the deceased had a responsibility to make (provide further) provision to the claimant. There are 12 regulated factors the Courts will use to assess whether the deceased person has a responsibility to the claimant(s).

Current laws provide an opportunity for former and alienated family members, children’s spouses (former and current) and others to challenge a Will through the Courts and if successful, will receive a distribution the Testator may not want to occur.

The legal industry says the number of complaints of Wills, under family provision laws, is increasing and courts are tending to favour claimants more often in their rulings, granting larger distributions than the Testator had intended. It now seems that the type of obligation parents are assumed to owe their children while they are ‘dependents’ has extended into adult life and continues beyond the parents’ passing.

Our advice, irrespective of whether a person has a Will or not, is to consider strategies that build in protection against a claim as best as possible when making the Will, and ensure the Testator's reasoning and wishes are known specifically and properly recorded.

Should you have any concerns about your Will or estate, or feel that you may be entitled to make a claim against someone else's estate, Lawcorp Lawyers can assist you and invite you to call David Smarrelli on 9894 6888 who will be pleased to assist you.

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