Can You Put Anything You Like in Your Will?

When it comes to writing your own will, you may think you should be able to divide your assets however you like. This includes dividing assets based on emotions at the time of writing the will. For example, favouring one child over another because of their actions.

While it may not be unlawful to leave a part of your estate to someone, it may be what the reasonable person considers ‘unfair’. The law takes into account moral responsibilities owed to family members. Although they are your assets to divide, these laws protect your family from being unfairly disadvantaged.

Contesting a Will

Contesting a will is an option if you feel the assets have been unfairly allocated. The law recognises that sometimes you might need to make a claim against a deceased person’s estate. The court can make orders to allow you to have more than what is specified in the will. The court determines how much more is appropriate.

Of course, that may seem unfair to some people, but that is what the law provides. It considers what certain people should have been given by their wills by taking into account factors such as:

  • Whether the person making a claim is an eligible person (as defined by the law);
  • Whether there are circumstances which justify the making of orders allowing a claim; and
  • Whether there has been adequate provision made in the will for the proper maintenance, education or advancement in life of that person.

Factors for Consideration

The court will also consider several factors when making orders to allow a portion of a deceased’s estate to be given to the claimant:

  • The nature and quality of the relationship between the person making the claim and the deceased;
  • The means and needs of the person making the claim compared with the size of the estate; and
  • Other factors such as:
    • Whether and to what extent the person making the claim contributed to the property and welfare of the deceased person;
    • The character and conduct of the person making the claim before and after the death of the deceased;
    • Circumstances before and after the deceased person’s death; and
    • Any other matters the court considers relevant including things which were in existence before or after the deceased person’s death.

It is clear that the law prioritises fairness in the distribution of an estate. However, what the court considers ‘fair’ will vary, depending on your individual circumstances. Please get in touch if you have any questions about your will and estate.