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Can I Prevent my Will from Being Challenged?

It is not possible to legally prevent a will from being challenged.

For example, in NSW the Succession Act provides that certain people, generally close family, have a right to challenge the will of a deceased person if they have not been properly provided for.

The Act limits the ability to challenge a will to “eligible persons”: spouses (including de factos), former spouses, children, other persons who lived with the deceased in a close personal relationship and anyone who was financially dependent upon the deceased and lived with them as a member of their household.  A will cannot exclude these people from having the right to challenge the will.

When hearing an application to vary a will in favour of an eligible person the Court considers whether the will makes adequate provision for the proper maintenance, education or advancement in life of the person. When deciding this question the judge can consider a range of factors, including the personal circumstances of the applicant, such as their age, their financial position and the financial position of their spouse or partner, if they suffer from any disabilities and whether the applicant was provided with anything during the deceased’s lifetime.

Critical to the determination will be the nature of the relationship between the applicant and the deceased. This involves consideration of whether a provision would ordinarily be made to a person in the position of the applicant, the character and conduct of the applicant both before and after the death of the deceased and in the case of a strained relationship between the applicant and the deceased, the origins of the disagreement. These issues are also viewed in light of the size and nature of the assets making up the deceased estate.

Whether a Court will decide to vary a will by granting a Family Provision Order is heavily dependent on the facts of the particular case. For example, in Andrew v Andrew [2012] NSWCA 308 the applicant, who had been estranged from the family for 35 years, was successful in receiving an extra $50,000 from her deceased’s mother’s estate in circumstances where the applicant had care of a young child and the altering of the will did not create undue hardship on the remaining beneficiaries.

In contrast, in Burke v Burke [2015] NSWCA 195 where the applicant who had little contact with his mother for the proceeding 20 years, the court declined to make a provision order. Although Mr Burke was in financial need, his lack of contact with his mother was held to be largely of his own choice and his only child had been independently provided for by his late mother’s will.

What options are there to minimise the risk of a will being challenged?

Although you cannot prevent a claim being made by an eligible person you can take steps to attempt to mitigate the possibility of a claim being made and its extent. You should seek expert assistance from a lawyer in drafting the will.

It is important to recognise that if you decide to leave someone out of your will entirely or only leave them a nominal amount they may have a successful claim against your estate that your executor will have to defend, using funds out of the estate and delaying your estate being settled on your intended beneficiaries. If you wish to avoid this happening, one possible solution is to make reasonable provision for this person in your will so that it is unlikely they will consider bringing a claim or that if they do, it is unlikely a court will decide to disregard your wishes.

However, as noted above there are no strict rules for whether a sum will be reasonable in the circumstances so there is no guarantee that your wishes will still not be varied by the court.

Another option is to leave behind evidence, for example by making a statutory declaration, that explains why you have chosen to exclude a person from your will. This does not guarantee the court will dismiss any application for a Family Provision Order but evidence of this kind has been referred to be Courts when deciding whether adequate provision has been for the person in the circumstances.

Can I transfer my assets to others before I die? 

Although you can always make gifts to people of your assets before you die, this approach is unlikely to work in NSW if your aim is to avoid your estate being challenged.

The Succession Act states that if someone has been held to be entitled to a Family Provision Order but the estate of the deceased is insufficient to fund this, the court can order provision to be made from the deceased’s “notional estate” if one exists.

Assets may form part of the notional estate if they were owned by the deceased but changed ownership, for example by being transferred to another person or to a trust, within three years prior to the death of the deceased, or after their death altogether.

If these conditions are met, the court has the power to unwind the transactions so that the assets are capable of being settled on an applicant to satisfy their family provision claim.

Segelov Taylor Lawyers act for both executors and plaintiffs (those seeking to challenge wills) in family provision claims.   We provide an obligation free case assessment which will give you an idea of our opinion as to whether a claim is likely to be successful, how much the claim is worth and what the legal costs would be.

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