Wills - keeping everyone happy?

Family structures have become more complex over the last few decades, with second and sometimes third marriages, a higher portion of people choosing not to marry but cohabit, and others choosing to get together in some manner in the last few years of their lives.

Some people have few family members but may have close friends or even long-term carers who have become their companions. This can result in many different and sometimes competing interests to consider when drafting or revising a Will. Sometimes, it is not possible to meet everyone’s expectations (or the Will-maker does not wish to) and disputes arise after their death.

Preparing, updating and storing a Will is a responsible step in ensuring that a person’s testamentary wishes are respected, and their estate is handled by their preferences.

A family provision claim to contest a Will

The law seeks to protect certain classes of close family members, particularly spouses, de facto partners, cohabitants, minor children and, to a lesser extent, adult children, as well as those persons that were in effect being financially maintained by the deceased at the date of death.

In all Australian States it is possible for ‘eligible’ persons to contest the terms of a Will on the ground of not having been allocated an ‘adequate provision for their proper maintenance, education and advancement in life’. This is commonly known as a family provision claim.

When writing a Will, it can be helpful to outline in a separate statement why provision is being made or not for particular family members. This might prevent or limit disputes.

Deed of Variation of a Will

Faced with a potentially successful family provision claim, where all those involved are willing to work together and reach an early compromise, it is possible to enter into a Deed of Variation varying the original Will by consensus. A Deed of Variation is a legal document that changes the terms of a person’s Will after their death. Beneficiaries who are aware of a family provision claim that is likely to be successful can sign a Deed of Variation so that the applicant making the claim receives sufficient provision from the estate to satisfy them. This means all the parties can avoid the potentially time-consuming Court proceedings and allow the estate to be distributed as soon as possible.

A less likely but possible reason for the need for a Deed of Variation is if one or more of the beneficiaries decide, for whatever reason, they do not wish to accept their inheritance. In this scenario, a Deed of Variation can determine the inheritance is not made to them.

As the Deed is a legal document, it is important to obtain legal advice. This will ensure that any tax implications, such as capital gains tax and benefits, are considered.  To be valid the Deed should be signed by the beneficiaries named in the Will and the executor (the person responsible for carrying out the provisions of the Will).

Updating or revising a Will

It is also possible for the person creating the Will to limit disputes and problems by being proactive. It is important to ensure that a Will is kept up to date. Wills should be reviewed regularly, for example, every five to ten years at a minimum but particularly where there has been a change in personal or financial circumstances. This might be marriage, divorce, the birth of a child or significant changes to a person’s financial situation.

For example, if a person marries, their Will is automatically revoked unless the Will has made explicit provision for an upcoming marriage. If a person separates from their spouse or partner it is likely they will want to adjust their Will accordingly to protect those beneficiaries who they do wish to inherit rather than an ex.

A codicil can be used to make minor amendments to an existing Will, but for significant changes it is advisable to create a new Will, ensuring that it explicitly revokes any previous versions to avoid any confusion in the future.

Other points for a person to check are whether their executors are still mentally able to administer the estate, if they have made provision for any children and grandchildren, if they have appointed guardians, if they are inadvertently still making provision for a former son- or daughter-in-law or whether they have missed anyone out.

Storing a Will

Having prepared a Will it is important to keep it safe, and those who need to know are aware of where it can be accessed. One option is to store the Will with the solicitor who prepared the Will. As a minimum, the executor should know where it is stored. In NSW, there is a Will registration service which will ensure the Will can be accessed easily when needed.

Time limits to making a family provision claim

Disappointed beneficiaries, particularly those who lived with or were financially supported by someone who has died, should seek legal advice early, as there are strict time limits on bringing a claim. These limits vary in the different jurisdictions. In NSW, a claim must normally be made within 12 months of the Will-maker’s death whilst in Queensland, for example, a person wishing to contest a Will should notify the executor of their intentions within 6 months and apply with the Supreme Court within 9 months of the date of death. In Victoria, South Australia and Western Australia, a claim needs to be made within 6 months of the Grant of Probate having been made, but within just 3 months in Tasmania.

Often, claims can be resolved through a mediation process avoiding the need to go to Court.

Contact our Wills and Will Dispute Lawyers based in Sydney, NSW

While it is possible to prepare a Will on one’s own, seeking legal advice is always recommended to ensure it is legally valid and comprehensive. From its base in Sydney, Szabo & Associates Solicitors can help with writing or updating your Will or challenging an inheritance situation in most jurisdictions. The firm’s expert team has several decades of experience in dealing with claims and writing Wills to minimise the risk of a dispute. Please contact us on 02 9281 5088 or fill in the online contact form.