When you write a will, you can’t always ensure that all parties will be happy with your decision. A disgruntled child or relative may choose to contest your will if they are not satisfied with the terms laid out in it. Heirs or beneficiaries who feel discontent may cause years of delays in the administration of an estate, leading to sizable legal fees.
According to the Australian Commonwealth, the law that governs six states and seven territories, there is no guarantee that a will cannot be successfully contested or challenged. But you can have safeguards put in place to make it difficult for contesting a will after probate.
Grounds for contesting a will
As per the all State Acts, the grounds for contesting are the following:
- There is evidence of tampering
- The will is not properly executed
- It was not the last will drawn up by the deceased
- The deceased was tricked or improperly influenced by another party
- The deceased lacked sufficient mental capacity or understanding to write a will
- The will does not give proper provision to family members and dependents
How to avoid contested wills
Include a no-contest clause.
One of the most fool-proof ways of preventing a challenge is to include a no-contest clause—also called an in terrorem clause— in your will. However, this will only work if you are willing to leave something of value to the potentially disgruntled relative. A no-contest clause outlines that if an heir challenges the will and loses, then they will get nothing. You must leave the heir enough assets so that a challenge is not worth the risk of losing their initial inheritance.
Transfer your assets while you’re still alive.
Another effective way of avoiding a contested will is the transfer of assets while you’re still alive. But keep in mind that the provisions of the notional estate in NSW can prevent this strategy if the transaction occurs within specified timeframes with reference to the date of death.
Get legal advice while planning your estate.
The best way to prepare a will is to have an experienced elder law or reputable estate planning attorney to assist you in drafting and executing the will. After all, wills need to be signed and witnessed, usually by two independent witnesses—one of the witnesses can be your lawyer. When they’re present during the drafting, you can ensure that the language that has been used is correct, and that you’re receiving sound legal advice that can avoid future conflict.
If you need a lawyer who can help you with contested wills in Sydney, contact one of our Wilding and Co.’s attorneys to receive assistance in establishing capacity and guarding against specific potential conflicts.