If you’ve read the first two parts of this series, you might be feeling a bit unsettled about the prospect of your Will being challenged. In this article, we are going to look at proactive strategies for minimising the risk of Will challenges.

Note that we use the term minimise. This is because we can never completely prevent a Will challenge. However, there are actions that can be taken as part of your estate planning to reduce risk.

What Doesn’t Work

There are a few misconceptions about preventing Will challenges. Here are the things that don’t work:

• Giving someone $1.00. There is no minimum amount to prevent a challenge.
• Putting a clause in your Will saying if someone challenges then they lose all benefit under the Will. These clauses are not valid.
• Hoping they just never find out. Once Probated, Wills become publicly accessible documents.

What Can Work

1. Remove assets from the Estate

It can be a surprise to many that your Will cannot control all of your assets after your death. It does not, for example, control assets owned jointly, assets owned in a trust and superannuation (unless specifically directed).

Also, only the assets which are controlled by the Will are subject to a Will challenge.

We can use these two facts to try to move assets out from your Will. A good example is moving a bank account into joint names, so it automatically passes to the survivor and does not form part of the Will.

This is currently the most iron-clad way of securing assets from a Will challenge. It needs a careful assessment of your assets and situation to develop an individual plan.

2. Obtaining formal advice

If you are making a Will that could potentially be challenged, this is something we would discuss with you at our appointment, where we would provide you with advice relevant to your circumstances and make you aware of the risks of challenge.

We note this advice in our files and often include a clause in your Will which shows you have received and considered this advice. This can act in your favour with the Courts in showing that you made an informed decision.

3. Setting out your reasons

It can be a good idea to set out the reasons why you have decided to write your Will the way you have. This can either be done formally in a statutory declaration when you prepare your Will, or informally in a letter to keep with your Will. You do need to be careful to ensure that you stick to facts which can be proved rather than becoming emotive or making wild claims, as these can work against you. These reasons can be taken into account by Courts in a Will challenge case.

The Take-Away

Will challenges are very complex and vary considerably case to case. It is really important that you receive advice on your particular circumstances, and that there is careful estate planning done to protect your Will as much as possible. An ‘internet Will’ is just not going to protect you! Let us help you and get it done right.

 

Note: this article relates to the current state of the law in Victoria and does not apply to other states in Australia.