Key strategies for protecting your Will from challenges

This article assumes you are one of the over 50% of Australian adults who have made a Will. So far, so good.

We would all like to think that we have done enough to avoid disputes over our estates when we die, but simply having a Will in place is not a sufficient guarantee of a smooth and ironclad transition of your assets to your beneficiaries.

Review your Will regularly

The best thing you can do to ensure your Will is protected from challenges is to review it often.

A review does not necessarily mean a complete re-write, but regularly checking over your Will, say every 3-5 years, or after major life events like divorce, estrangement, bankruptcy, or the birth of additional children or grandchildren, will go a long way to ensuring a smooth transition on your passing.

In checking your Will, you should consider:

• Who your chosen Executor(s) are
• Whether there is a suitable back-up if they cannot act
• How your assets and debts are actually structured
• Who your intended beneficiaries are

These simple checks are often overlooked but can make a huge difference to the chances of a challenge to your Will.

Engage an experienced succession lawyer

Even better than doing this alone is engaging the services of an experienced succession lawyer. A lawyer will help think about all of these factors, plus highlight additional issues that could affect your eventual estate. An experienced lawyer will identify pressure points and strategise how to best avoid disputes.

Document your estate plan thoroughly

Clearly documenting your estate plan involves more than just an up-to-date Will. It also includes other documents such as:

• Powers of Attorney
• Guardianship documents
• Loan agreements
• Deeds of acknowledgement of debt
• Superannuation binding nominations
• Family Trust and company control arrangements

Having a coherent plan in place, supported by proper documentation, reduces misunderstandings and ensures a much better chance that your wishes will be honoured.

Avoid common errors in Will execution

Having an experienced lawyer prepare your Will greatly reduces issues that arise from improper signing, witnessing, and dating. Simple mistakes by DIY Will-makers can make a Will invalid or cause serious delays and expenses for your estate. These errors also present opportunities for challenges to your Will.

Communicate clearly with your beneficiaries

One often overlooked aspect of estate planning is clear communication with future beneficiaries about your wishes for the distribution of your assets. Open discussions with your spouse, de facto partner, and children can help avoid misunderstandings and resolve potential grievances early.

Protect against mental incapacity claims

One of the most serious challenges to a Will’s validity is the allegation of mental incapacity. This is particularly common for older or unwell Will-makers. Allegations of incapacity can result in your Will being voided or causing delays and added expenses.

To protect against such claims:

• Visit a GP or geriatrician for an assessment and report confirming your capacity if you are older or unwell.
• Have an experienced lawyer prepare your Will, creating a clear, independent record of your instructions to prevent allegations of third-party pressure or undue influence.

Secure your Will and protect your legacy

In summary, the best ways to prevent challenges to your Will are to:

• Review your Will and other estate planning documents regularly;
• Communicate your wishes clearly to beneficiaries, so there are no surprises;
• Get a doctor to sign off on your capacity if you are older or unwell (and keep records!);
• Have an experienced succession lawyer prepare your Will in the first place, especially if you have a complex asset structure, a blended family or are older or suffering from illness.

Take control of your estate planning today! Contact our team of expert lawyers to ensure your Will is legally sound and protected from challenges.