Another Estate, Another Challenge…

No one would welcome the news that the last Will and testament of a loved one is being challenged. The unfortunate reality for many is that the contesting of Wills is becoming increasingly common, as more people allege that they were due to inherit more or that there is something inherently wrong with how a Will is worded. These disputes can have a damaging impact on family and friends, and this has been shown very recently in the dispute in the UK over the estate of Michael Winner (reported here).

The late Mr Winner is reported to have left an estate that has been valued at around £50 million. His widow, Geraldine Winner and former PA, Dinah May, are currently embroiled in a legal battle over his last wishes. Ms May claims that she is entitled to a Kensington apartment that Mr Winner owned, arguing that she was to expect this to be bequeathed to her debt free. The reality however is that the property is still subject to a mortgage, which Mr Winner’s widow is refusing to pay off.

There is no denying that most people will draft their Wills with a view to giving all of their family members their entitlement. However, some people may have differing views to yours in terms of what they believe that they are entitled to. This is why it is important to take specialist legal advice on how the law on inheritance works, and how best to draft Will to ensure that your wishes are respected and the law observed.

Whose Will is it anyway?

It is important to highlight that a Will is an entirely personal document, designed to reflect the wishes and intentions for the person to whom it relates. In other words, you are perfectly entitled to draft your Will (generally speaking) according to your specific intentions for how your estate is allocated amongst family/friends that survive you. Indeed, any suspicion or evidence that your Will is the product of interference or pressure from someone else would be a basis for challenging its legality.

Why would someone challenge your Will?

Most people will be respectively of your last wishes. However, particularly in circumstances where family are grieving your loss and may have had some reason to expect that they would inherit more than they did, they may believe that there is good reason to challenge the terms of your Will. Lacking any evidence as to the formal validity of a Will, there are relatively few bases for anyone to challenge your Will. That being said, families are afforded an avenue to question the terms of a Will if they are able to found an argument based on a ‘lack of family provision’.

What is meant by a ‘lack of family provision’?

Your family are allowed to challenge the terms of your Will if they believe that you have not set aside enough of your estate to make ‘adequate provision’ for them on your passing away. Precisely how much of your estate is needed tends to depend on the circumstances. It is important to highlight that most claims on an estate for a lack of family provision are based on a belief (even a mistaken one) that they were due to inherit an amount of property or assets that is less than what has been provided in your Will. In situations where children are left differing levels of inheritance, or perhaps a spouse has not been afforded due regard in your Will, these are prime instances for a challenge based on a lack of family provision to be raised.

How are challenges to a will dealt with?

A family provision challenge can only be dealt with in the courts. The courts are generally very reluctant to become involved in disputes regarding Wills. That being said, they will respond to a claim that a Will has not made adequate family provision, but will do so cautiously. Family provision claims in respect of Wills are no small matter, and the law imposes a restriction on the people that are able to formally raise such a claim. Under the Succession Act 2006 (NSW), only those that are closest to you e.g. your immediate family, grandchildren etc. are legally entitled to challenge the terms of your Will. Not only are there legal criteria for potential challengers to your Will to meet, the courts themselves will also consider a challenge in its totality and consider a variety of different issues in determining whether or not the challenge should succeed. The kinds of things the court will be interested in, in deciding on the merit of a challenge include: 

• The depth and strength of the relationship that the challenger had with you;
• The (financial) requirements of the individual that is raising the challenge; and
• Evidence of any contribution that they made to you/your life that has not been considered and recognised in the terms of your Will.

The law on challenging Wills in the basis of a lack of family provision has been specifically designed to benefit those that are able to evidence a genuine loss of entitlement. There will be little to no importance attached to claims that are based on an ill-founded sense of entitlement, and the courts would take a very dim view of any such claim.

Challenges to the terms of a Will are often based on a lack of understanding of your thought process. As was mentioned before, Wills are deeply personal documents and should not need to be explained to anyone. However, it can be incredibly beneficial to discuss your thought process with your loved ones and help them understand why you have chosen to draft the terms of your Will in a particular way. This reduces the likelihood of any misunderstanding and consequent challenge to the terms of your Will, and also goes a long way in preserving familial relationships after you pass away. The battle over the late Mr Winner’s estate is likely to be severely damaging to all concerned, and would have been better avoided (and could have been) if only there was clarity on his intentions.

Contact Szabo & Associates Solicitors

Szabo & Associates, Solicitors is a law firm offering a range of private client services, including the drafting of Wills. Our leading team of private client lawyers are well respected in the profession for their drafting skills, and experience de of working with clients to ensure that their wishes are accurately reflect in the terms of their Will. We understand that you may be very nervous, even anxious, about planning for a time when you are no longer around. We appreciate this fact, and will work with you as a partner in the planning process, answering any questions you have and helping to create a truly bespoke will that reflects your intentions and observes relevant legal obligations. Contact us today to learn more.