Contesting a Will

Whilst you cannot prevent anyone from challenging (clauses in wills that say if anyone challenges they get nothing simply don’t work) you can take action to hugely reduce the risk of a challenge.

Resolve issues if you can during life, rather than leaving them to explode after death. Be open and frank with your beneficiaries, have meaningful discussions with them about your intentions and their expectations. Bringing beneficiaries into the picture rather than excluding them can go a long way to helping them understand the reasoning and rationale for why your estate planning decisions are the way they are.  These discussions can be hard, sometimes it is a first for a family, but very often. after both sides are able to explain their views, middle ground can often be found to keep everyone satisfied.

We also encourage clients to have the discussion with us about updating their Will and estate planning every three years or so, or sooner if there is a material event. Out of date Wills are  not only much more likely to be challenged, but they are also much less likely to hold up to that challenge than a fresh Will.

Claims and disputes often arise simply out of disappointment and jealousy, and the shock of discovery of inequality only when they read the Will for the first time after a death.  That shock can be significantly dampened by letting beneficiaries know the contents in advance, giving them much more time to digest and come to terms with its effects.

We can also work with you to consider how to deal with your assets in ways that can actually prevent challenges to your estate, which can be by restructuring your asset pool.  It matters greatly what way you own certain assets and there are clever strategies to change ownership, or cause assets to be held in ways that can actively prevent any challenge. 

We can also best advise on how your superannuation will be treated, as this is a non-estate asset that needs to be managed separately, and of course the transfer of assets into Trusts which is one of the most powerful mechanisms to employ to quarantine assets from attack.  Trust assets don’t fall into the Will, so they are outside it and not challengeable (at least in WA). In short, there are plenty of ways to make sure that certain family members won’t be able to challenge your estate:  however, some of these strategies come at a cost, with tax and stamp duty consequences.

At the end of the day, the strength and quality of the Will itself is obviously one of the keys to successful succession.  The right strategies, conversations and the right legal advice will be the smartest thing you’ll ever do when it comes to your legacy, and the best defence in terms of protecting against any form of challenge.