June 25, 2020
Grow your nest egg

Can Your Will be Contested After You Die? Putting a Stop to "The War on Wills”.

It is a common misconception that a will is executed in a way the Testator originally plans it. Your will can always be contested, but there are ways to minimise the risk.

One of the main reasons that people create a will is because it gives them peace of mind that their final wishes will be executed after they are deceased, including the distribution of any personal property, assets or wealth they have accumulated.

However, can we be 100% certain that our wishes will be respected after death, even with what you might think is an iron-clad will in place? The answer is...“not always”.

The bad news? Your will can be contested.

It’s a common misconception that wills are always executed exactly as the Testator originally intended. Wills can and are contested all the time, so when putting together your will you need to understand the ways that individuals can challenge your intentions.

Who has the right to challenge your will?

Under the Family Provisions legislation, family members have the right to contest your will. Only eligible individuals are allowed to make a valid Family Provision claim, and these must generally be made within 12 months of the will coming into effect.

When can disputes arise over your will?

Eligible family members can argue that they have not received a fair amount from your estate and deserve a larger share. Disputes may also arise where a family member is partially or fully dependent on you, where your will is not clear in its intentions, or if it can be proven that you were not of sound mind when preparing your will.

What does “claims of undue influence” mean?

Claims of undue influence can lead to wills being challenged. Undue influence refers to situations where a will is not deemed to be an accurate testament to the Testator’s true intentions for their estate because they have been coerced or influenced by another person.

Four ways to prevent your will from being contested

Human nature being what it is means that wills will always be open to contest. To prevent your will from being challenged, you should:

  1. Carefully word your will to make sure it is clear and unambiguous
  2. Review your will regularly to reflect any changes within your family
  3. Include a clause explaining why any dependants have been excluded
  4. Adequately provide for each family member to minimise likely claims

Need more help? It’s time to speak to an expert.

Please note that this article includes general advice only, and for more information about your specific circumstances we strongly recommend that you speak to the experts. Professional advice will always provide the best outcomes for your individual situation.

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