RMB Articles

Bulletproofing your Will is Complicated

Posted 22-08-2017
Written by admin 101

Preparing a “bullet-proof” Will can be complicated, particularly if we do not wish to provide for a particular person.

You are entitled to leave your assets to whoever you want in your Will, and leave people out of it for whatever reason.

However the Succession Act sets out eligible people who may be able to challenge your Will upon your death if they are able to prove to the Court that they have a "need" to be provided for from your estate.

These eligible people include spouses and de facto partners, children and other relationships of interdependency.

There is no way to draft an uncontestable Will. The Court will ignore any clause to that effect if your Will is challenged. However, there are alternatives that may potentially reduce the risk of your wishes being overridden.

You may wish to leave a lesser share to the person in question rather than leaving them out of your Will entirely. However, this will not be preclude them from challenging your Will, and this lesser amount could also have the unintended consequence of provoking a claim.

You may also consider disposing of assets during your lifetime, as your estate is only comprised of assets you own when you die. However notional estate rules in NSW state that such assets disposed of three years prior to your death may still be considered a relevant asset when determining a family provision claim. Furthermore, there may be difficulties in disposing of assets that you require for your personal needs, as well as stamp duty and Centrelink provisions.

Finally, you may wish to prepare a written statement setting out your reasoning for leaving someone out of your Will. This can be written yourself or drafted by your solicitor. In this note you may set out any history of amounts you have previously given to the person or any dispute that resulted in a lack of contact with them.

This would provide a voice to your intentions as any claim made against your estate will be dealt with after your death. Such a statement should be reviewed as your circumstances change so that the facts are kept up to date.

Again, while none of the above are guarantees that your Will won't be challenged, these are options that the RMB estate planning team will be able to advise you on.

Have you forgotten to do a Will or do you have a question about your estate? You can contact us. We'll be able to help you via a quick phone call, ask us a question via email or even chatting with you online.