Protecting Your Estate from being Contested
Contesting a Will can be a significant concern for many Australians when planning their estate, especially if there's a family member likely to challenge the distribution of assets. Understanding the legal landscape and employing strategic measures can help ensure your wishes are respected. Here are some strategies you could implement to protect your estate from being contested under Australian law.
1. Understand Who Can Contest a Will
Firstly it's important to understand who can contest a Will under Australian Law. Typical certain individuals are eligible including:
Spouses or domestic partners
Former spouse or former domestic partner
Children, including adopted and stepchildren
Registered caring parent
Grandchild
Household member
These individuals can make a Family Provision Claim if they believe they have not been adequately provided for in the Will. The application must be made to the court within 12 months from the date of the deceased's death.
1. Create a Comprehensive Estate Plan
The foundation of protecting your assets starts with a comprehensive estate plan. This includes drafting a clear and legally sound Will. You might consider documenting your intentions and the reasons for your decisions in your Will. Particularly if you are excluding someone or providing unequal shares to your beneficiaries.
It’s important to have a discussion with your Solicitor about what to include to ensure all documents are correctly prepared and executed.
2. Consider a Testamentary Trust
A testamentary trust is a trust established within your Will that only takes effect upon your death. This can provide several benefits, including:
Protection of Assets: This can be advantageous as the assets are held in the trust name rather than the individual’s name.
Control Over Distribution: Allows you to set conditions on how and when beneficiaries receive their inheritance.
By placing assets in a testamentary trust, you can reduce the likelihood of a successful contestation, as the assets are managed according to the terms of the trust rather than being directly distributed through your Will.
3. Provide a modest inheritance
One strategic approach is to provide a modest inheritance for the family member likely to contest the Will. This can sometimes reduce the motivation to challenge, as long as the gift is sufficient and reasonable.
4. Regularly Update Your Will
Life circumstances change, and so should your Will. Regularly updating your Will ensures it accurately reflects your current wishes. Significant life events such as marriage, divorce, the birth of children, or changes in financial status should prompt a review and update of your Will. This ensures that your plan remains relevant and less susceptible to challenges.
For personalised advice and assistance in drafting a robust Will, reach out to our experienced estate planning Solicitors who can guide you through the process and provide peace of mind for you and your loved ones.
Disclaimer: The content presented in this article is offered for informational purposes and should not be construed as legal advice or a substitute for professional guidance. If you have questions or require legal assistance, we strongly recommend consulting with a Solicitor to address your individual circumstances.