It is a common misbelief that a Will is executed in a way the Testator originally plans it. When preparing your Will, it is important first to understand how another individual can challenge these intentions.
Your family members have the right to challenge your Will under the Family Provisions legislation. Only eligible persons can make a valid Family Provision claim generally within 12 months of the Will coming into effect, and the eligibility criteria differ slightly between each state and territory.
The Will may be contested by an eligible family member if they feel your Will is unfair. Specifically, they have the option to argue that they have not received a fair amount from your estate and deserve a larger portion to be considered ‘adequately looked after’.
Disputes from your family may arise in circumstances where a family member is partially or fully dependant on you, your Will is not clear in its intentions, or they can prove you were not of sound mind when preparing your Will.
Specifically, claims of undue influence can arise. Undue influence refers to a circumstance where the Will in question is not an accurate testament to your true intentions for your estate because you have been coerced or influenced by another person to favour them over others in your Will.
To prevent a Will from being contested:
– carefully word your Will, making sure it is clear and unambiguous;
– review your Will regularly to represent any changes within the family;
– include a clause on why dependants have been excluded; and
– adequately provide for each eligible family member to minimise the likelihood of future claims and your estate being eroded by legal bills