Australia: How to make your will challenge-proof

Last Updated: 23 November 2016
Article by Joshua Crowther

Challenging wills has become much more widespread, as property prices have soared and the family home has come to be worth a fortune. But maybe you don't want a certain relative to get a slice of your hard-earned assets. Perhaps you'd like to make sure that the estate you leave goes to the person or people you think deserve it most, and that the will is as immune from being challenged as possible.

There are things you can do when drawing up a will to make it as legally challenge-proof as possible.

A good first step is to own assets jointly because such assets pass automatically to the surviving joint owner of the property. This of course assumes that you want that person to inherit your joint assets. If not, then you had better change your joint ownership arrangements as soon as possible.

Keep in mind that if there isn't enough in the estate to make proper provision for a claimant, the court may use "notional provisions" of the Succession Act 2006 (NSW) to claw these jointly held assets back into the deceased's estate.

You can also put your assets into a testamentary trust for the benefit of someone you want to inherit, although this can also be challenged if it's not done properly with expert legal advice.

Making a detailed statement about your decisions to accompany your will

It's a good idea to make a detailed statement outlining your reasons for making your will the way you have.

If you explain why you decided to exclude someone from your will, the court will place a high degree of importance on your wishes in the consideration of a challenge. You'll need to stress how you considered any obligations to those who might feel the will is unfair. This can be done in writing or by filming a statement on video.

An example of the effectiveness of this approach in challenge-proofing a will is provided by the case McIntyre v O'Regan [2015] NSWSC 1985, in which the adult children of a deceased testatrix were unsuccessful in challenging their mother's will, partly because she had made a video clearly explaining the basis of her decisions in making her will in a particular way. (Please see our earlier article Court ruling on will shows importance of expert advice.)

Money held in superannuation and life insurance policies

It's important not to forget money you have in superannuation.

Money held in super is transferred directly to the person you nominate as your beneficiary on your death. In fact, the use of super and life insurance policies is often fundamental in getting your desired post-death outcome – but be careful who you nominate as your beneficiary, because you can't just appoint anyone.

This will largely depend on your individual circumstances, but is especially worthwhile if you have a complicated blended family with children and young people you want to provide for properly after your death.

De facto of 30 years makes successful claim on estate

A recent, and typical, case I had was where I acted for a woman whose partner of 30 years died unexpectedly. He had a child from a previous relationship and, before he met his future de facto partner, made a will which left everything to his child from the previous relationship.

All assets were held in the late husband's name, as had been the case for the previous 30 years. They had some wealth and travelled the world frequently. They were in their late 50s and 60s and lived a nice life.

When her partner died, my client had literally nothing in her name. The child who was the beneficiary of the estate quickly asked my client to leave the house and tried to get the accounts transferred into his name.

A claim was brought by my client and she received in the realm of 50% of the estate, meaning she had enough to buy a house outright and enough funds in the bank to cover exigencies of life and as a financial buffer. This is a case which exemplifies why the legislation allowing a claim to be brought against a testator's wishes is necessary.

Stepchild brings claim against estate on dubious grounds

On the opposite end of the scale, where the legislation allowed a claim that arguably should not have been made, was where I acted for an executor (brother of his deceased sister) who was forced to defend a claim from a stepchild of the deceased.

Section 57(1)(e) of the Succession Act 2006 (NSW) allows any person to bring a claim against a deceased's will if they can prove they were a "member of the household" of the deceased and were either "wholly or partly dependent" upon the deceased.

The claim of the stepchild was based upon the fact that he lived in the deceased's household for a period of about three months in the 1970s (and, as such, was partly dependent upon the deceased for financial and emotional support).

Had the matter progressed to court, it is likely that the stepchild would have lost. However, it was agreed – prior to hearing – to give the stepchild a fairly small amount of "go away" money so that the legal costs did not mount up, and to avoid ongoing emotional stress. This can be one of the frustrating realities for an executor when a claim is made against an estate, especially if the estate is small.

Testator's intentions stymied by non-binding superannuation nomination

Another example of a testator's intentions being scuppered is where the deceased left a super nomination form appointing his children as beneficiaries of the super policy. However, because the nomination was a "non-binding" nomination (meaning the super fund was not bound to pay it to the children but could exercise its discretion), it passed to the spouse of the deceased (who was not the parent of the children nominees). This was against the deceased's intentions, given that he'd provided for his spouse in a different way. I have seen this happen regularly and, generally speaking, people are not aware of it. Unfortunately, the consequences often create results which are anathema to the deceased's intentions.

It is a quirk of the law that a person should execute a "binding" nomination (meaning the super fund is bound to pay it to the nominated beneficiary or beneficiaries) in addition to a will. It is important to get expert advice though, because many people do not execute such binding nominations properly and/or are not aware of the strict categories of persons who can be nominated as a super beneficiary.

Joshua Crowther
Legal wills
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions