Throughout my years as a Wills and Estates lawyer, the most common misconception I have noticed among clients a belief that their Will is bulletproof. Unfortunately, even with the best drafting, no Will is beyond challenge.
I read an article recently which summarised cases where Wills have been contested. The common theme in each case was that the testator’s wishes were challenged by one party or another, and there were substantial legal fees incurred to resolve the dispute either through the Courts or mediation.
The most likely ways in which your Will can be challenged are:
- Unclear drafting – if it is not clear who gets what and when, there can be room for challenges to your Will. This is why I always include the full names and addresses of all Executors and beneficiaries in Wills, and provide contingency plans for how the estate is to be distributed if an Executor or beneficiary is already deceased when the Willmaker dies.
- Multiple versions of your Will – if there are many versions of your Will which contain vastly different distributions to different parties, the parties can dispute which version of the Will should be used, and it may not always be the most recent one. If there have been issues with loss of capacity to make a Will when the most recent version is drafted, the Court may look to an earlier version of a Will for the distributions to be made.
- Not covering all bases – if you leave a child or other financial dependent out of your Will, including step-children and children of your de facto partner, without providing a thorough explanation as to why in the form of a Statutory Declaration, it may be more likely that a claim will be successful. However, even preparing a Statutory Declaration outlining these reasons, is not a bulletproof measure against challenges to your Will.
- Not having a Mutual Will agreement in place if the circumstances warrant it – if one spouse changes their Will after the other has died, leaving agreed beneficiaries out, the Will may be challenged. I have previously written about Mutual Wills here.
Please do not hesitate to contact me should you require advice or assistance in relation to a contested Will, or if you have any concerns that your Will may be challenged. Protecting your wishes and ensuring your will is up to date is something everyone should do.