Have you left someone out of your Will, or left them less than they expect? Can they challenge your Will? As a rule of thumb, if they are your spouse (or former spouse), child or other dependent, or were named in your previous Will, then quite likely yes.
Succession laws around Australia provide certain classes of claimant the right to seek a share of a deceased person’s estate, where they are an immediate family member or have been financially supported by the Deceased. The Courts have a broad power to award payment out of the estate, where the Judge thinks it fair to do so. A broad range of factors are considered. Primarily, the Court looks at the financial needs and circumstances of the Claimant. Would they reasonably have expected to receive something under the Deceased’s Will, to help support them in the future? The nature of the relationship between the Deceased and the Claimant is also looked at, particularly where the estate is substantial.
The validity of a Will can also be challenged on a range of grounds. If the Deceased changed their Will to leave out the Claimant, they may argue that the Will was defective, or that the Deceased had lost their mental capacity to make the Will. Sometimes, there are claims that a new beneficiary has improperly influenced the Deceased to change their Will.
There is absolutely nothing you can do to prevent someone from challenging your Will, if they are unhappy with its terms. Whether they will be successful, is another matter. One certainly though, is that estate litigation costs are massive. The Claimant often has their legal costs paid out of the estate, sometimes even when they lose.
There are however steps you can take now to pass assets to your intended beneficiaries, in a way that can shield those assets from such claims.
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