06 May 2020

Will challenges set to spike

It is no secret that the global pandemic we are currently enduring has made many contemplate their own mortality.

A great many of us have been thinking a lot about the “What if’s”– what if I pass away? Or what if I lose the ability to make key decisions for myself through injury, illness and misfortune?

For obvious reasons, with the risk of death or incapacity so vastly increased due to Covid-19, people turn inward and think about the worst.

This has led to a great rush on estate planning lawyers suddenly called to help people put their affairs in order; I have had a number of clients suddenly instruct me who have been thinking for years about getting their Will drafted, or updated. It was just not a priority for so many years – until suddenly it was.

But there is also a whole other wave of estate work yet to come. That is estate litigation – people challenging Wills.

The reason this type of claim is set to increase is also due to the pandemic – but instead of it being about mortality, its about finances. Specifically, that the economic consequences of the virus have been so devastating for so many – businesses have collapsed, unemployment is at levels not seen for a century, consumer confidence is rock bottom.

Estate planning, in particular is not a one size fits all, set and forget exercise. Like many of our recent clients, Wills need updating as your world changes, as your personal landscape evolves. For instance, a Will drafted 15 years ago when your children were in school may now be a very different thing with those children adults, getting married, having their own children and forging their own lives. Divorces, marriages (both ones you approve of and don’t) grandchildren, de facto spouses, superannuation growth, all of these things alter your plans. And if your Will doesn’t keep up, you are left with a very outdated document.

Outdated Wills are much more easily challengeable and often result in claims. And with the economic fallout of the pandemic, even a relatively recent Will may now need review.

As an example, say you have a Will, well drafted and well considered from three years ago – in it you left everything to your spouse, and if they die, then all to your three adult children equally. There may be no issue with your spouse, but since the pandemic, one of your kids has lost his job and one’s business has folded.

In this example, the two children who are now in dire financial straits have a much increased possibility of claim than before, because their financial needs have increased so much more.

And with some predictions that it might take, in real terms, a decade for the economy to regain the ground it has lost due to the virus, the inequalities and uneven landscapes that have suddenly appeared in many families will cause many fights, and many claims for years to come.

For Will makers and their beneficiaries, the time is now to consider how best to build estate planning that works for the whole family, in light of current changes, because these changes are not going to evaporate as soon as social distancing relaxes.

We are here to help. If you are drafting or updating your Will, or if you are a potential beneficiary who may worry about their own personal situation, get in contact and lets chat about what you can do build a better outcome for all.

Morgan Solomon is one of the State’s leading succession lawyers. His legal experience spans over 20 years and works with clients to navigate and resolve complex Wills and estate planning and probate, inheritance issues, estate disputes and litigation and business succession. He also has a wealth of experience in general commercial law. Morgan is adept at making clients feel at ease no matter the situation they are in, working with them delivering smart legal strategies and working hard to find fast and equitable outcomes.