A testator can divide their estate however and to whomever they wish, but can you prevent someone from contesting your will?
Where There's a Will, There's a Way
It is a common misconception that a will cannot be contested provided that it is legally valid. But in fact, even if your will is valid, it is impossible to absolutely prevent someone from contesting your will if they are an eligible person who meets the relevant criteria.
However, while it may not be possible to prevent a will contest, certain strategies can be employed to minimise the risk of a family provision claim.
Minimising the Risk of a Will Contest
Ensure Everyone Receives Adequate Provision
You can prevent a will contest by ensuring that you make adequate or proper provision for any persons whom could successfully contest your will. What constiutes "adequate" or "proper" provision will depend on the needs of the beneficiaries, the size of the estate, any contributions made by the beneficiaries to you or your property, the relationship between you and the beneficaries, and their character and conduct.
It is recommended that you seek legal advice to ensure that everyone receives adequate provision.
Leave a Token Provision
Leaving a token provision for someone who might contest your will, can discourge them from contesting your will. However, a mere token provision does not prevent a will contest, and the Court may consider that the token provision was not proper or adequate in the circumstances.
You may prevent a will contest by transferring your property and other assets to your intended beneficiaries prior to your death. This means that your estate will have little or no value and will therefore prevent or discourage a will contest.
However, in NSW, if you transfer your property within 3 years of your death with the intention of preventing a family provisin claim, that property may be deemed notional estate and will be available for distribution to the claimant.
You may enter into an agreement with a potential beneficiary whereby they waive or release their right to make a family provision claim. However, any such agreement will only be effective where the Court has approved it. In deciding whether to approve the release, the Court will have regard to the following:
- Whether it was prudent for the releasing party to make the release.
- Whether the release was in consideration for some advantage, financial or otherwise.
- Whether the provisions of any agreement were fair and reasonable.
- Whether the releasing party has had the benefit of independent advice.
If you wish to exclude a family member from your will because of estrangement, disentitling conduct, or any other reason, it is advisable to include a statement of reasons in your will which set out your justification for disinheriting that person.
While a statement of reasons will not prevent someone from bringing a successful family provison claim, the Court will have regard to the deceased's testamentary intentions in reaching their decision.
DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.