Have You Been Left Out of a Will?

Have You Been Left Out of a Will?

The loss of a family member is always a difficult time, but it can become even more distressing to learn that you have not been included in the family member’s Will. Generally, a person may leave their assets to whomever they wish. However, the law recognises that there are those who relied on the deceased for support who can sometimes be unfairly left out of the deceased’s Will. Such people are able to make a claim so that their needs are adequately provided for.

How do I challenge the deceased’s Will?

There are two main grounds for challenging the deceased’s Will or contest the Estate. These are:

  1. Challenging the validity of the Will – this may be on the basis that the Will maker did not have the legal capacity to make the Will, or didn’t understand what they were signing; or
  2. A claim can be made under the Succession Act 2006 (NSW) on the basis that the Will maker failed to provide for a family member where they had a moral obligation to do so.

Can anyone challenge a Will?

Under the Succession Act, only persons who qualify as eligible persons under the Act may apply to the Court. There are seven categories of eligible persons, namely:

  1. The wife or husband of the deceased when they died;
  2. A person in a de facto relationship with the deceased when they died (including same sex partners);
  3. A child of the deceased;
  4. Former wives and husbands of the deceased or former de facto partners of the deceased, who were receiving or entitled to receive maintenance from the deceased when they died;
  5. A grandchild of the deceased, in certain circumstances;
  6. A step-child of the deceased in certain circumstances; and
  7. A parent of the deceased.

To show that you are entitled to receive some benefit from the estate you must show that the deceased had an obligation to provide for you and that you have been left without adequate provision for your proper maintenance, education or advancement in life. It is important to note that inheritance claims are subject to a strict time limit, which is 12 months after the date of death.

You may not need to go to court as most parties are encouraged to resolve their claims by mediation to avoid legal costs or any lengthy delays.

Get legal advice

If you are concerned, please be sure to contact us as soon as possible or you may be prevented from making a claim. It is usually a good idea to try and get a copy of the last Will of the deceased so that you can discuss the details with us more accurately. If you or someone you know wants more information or needs help or advice, please contact us on (02) 9963 9800 or contact us via our form, here. If you would like to prepare your Will with us, please fill out the Will Instruction Form and we will contact you.

Busting 5 Common Objections to Making a Will

Busting 5 Common Objections to Making a Will

Making a Will can often feel like a daunting and unnecessary task. With much of the angst in the community regarding COVID-19 beginning to subside, you may be thinking that making a Will is not an important task anymore. However, the unfortunate reality is that death is inevitable and proper creation of a Will is always an important task, regardless of the circumstances. In this article, we explore five of the most common objections to making a Will and why these objections may not always hold up in reality.

1. I’ve told my family my wishes and I know they will do the right thing.

Sometimes knowing the wishes of a loved one who has recently passed away can mean a variety of different things to different family members. Moreover, verbal instructions are an inadequate way of dealing with your estate. Verbal instructions aren’t always binding and can result in delays and expenses for the administration of your affairs. The death of a family member is already an emotionally difficult time. Through ensuring you leave behind a clearly laid out and validly executed Will, your family will have one worry taken off their hands.

2. I’m a young person – the need to make a Will is far off for me.

Unfortunately, death is no respecter of age! Even with the simplest of estates in the case of a young person, the creation of a Will, enduring power of attorney and advance care directive helps ease the burden on those left, and may prevent the need to apply to the court for clarity.

3. My affairs are just too complex.

The issue with this objection is not that your affairs are too complex, but rather a solution seems too difficult to find. Yet, what is required is an experienced legal professional who can talk through your affairs and find an appropriate process to deal with your affairs.

4. What’s the point? Wills are successfully challenged a lot.

This is a common misconception. Wills and Estates lawyers are highly qualified in assessing the risk of a successful challenge and can suggest ways to reduce the value of the assets that are vulnerable to a challenge. Assets vulnerable to a Will challenge are assets that are owned under your own name. Your lawyer can advise you on mechanisms to reduce this risk, for example through transfer to a trust, jointly owning bank accounts and changing ownership of property to ensure your assets are dealt with in your desired way.

5. I already have a Will from quite a few years ago.

It is important that all Wills are regularly reviewed. Circumstances will inevitably change in life, such as the birth of a child, the start or breakdown of a relationship or assets being bought or sold. It is commonly suggested that Wills should be reviewed at least every three (3) years to ensure they reflect your most current circumstances. Old Wills could be obsolete and result in your estate not being dealt with in accordance with your wishes or being challenged by disgruntled and self-entitled beneficiaries.

Further Information

Making a Will is vital to ensure your estate is dealt with in your desired way. If you would like more information on how we can assist you in making or updating your Will, do not hesitate to contact us on 9963 9800 or at [email protected]. For more information, check out our blog here.

Writing a Will. Do I need a lawyer?

Writing a Will. Do I need a lawyer?

Writing a Will can ease the stress for both you and your loved ones when you die by providing you with peace of mind in making sure that your loved ones will be provided for when the time comes. However, often people wonder whether it is worth getting a lawyer to write a Will for themselves.

Are Lawyers Necessary to Write a Will?

While DIY Will kits can be found on websites, in post offices and sometimes from life insurance companies, it is not advisable to use these services.

Common mistakes made by people who choose to do their own Will include not signing the document properly, not having it witnessed correctly, and trying to bequeath assets or part of their estate when they don’t have full ownership over it. Not only does this create a massive conflict after the death, but it also takes longer to resolve, and more importantly costs more, and creates heartache at a time when you don’t need added stress in your life.

Step 1: Drafting Your Will

Though fees can vary, you can organise a fairly simple Will with a lawyer for approximately $500–$800. It is advised that you update your Will every five years, or when significant life events happen, such as buying a house, marrying, having children or a divorce.

Step 2: Consider All Possible Situations

Try to think of future scenarios that may impact you and your family significantly. It is often concerning to think about but it is vital to address possible scenarios where you and your named beneficiaries in your Will pass away at the same time, for example in an aeroplane or car accident. In this case you may want to name someone outside of your immediate family members, or a charity as an alternative beneficiary. By anticipating these alternative situations, you effectively have a number of alternative scenarios built into your Will.

Step 3: Select an Executor

It is important that you choose someone you trust to be the executor of your Will and who will be able to administer your estate according to your wishes. You must notify the executor that you have chosen them so they can be prepared. This is the person you name in your Will to administer your estate – your money and assets. That person hopefully understands your ‘view of the world’.

Step 4: Decide on Your Power of Attorney

Take this opportunity to discuss with us a power of Attorney. You need to prepare for a situation where you are incapable of making decisions due to being injured or sick or you’re not of sound mind. You can prepare for this by organising a Power of Attorney, so that the person of your choosing can act on your behalf to make financial and legal decisions. You can appoint more than one person as the Power of Attorney or put in place a substitute situation.

Step 5: Draft a Care Plan

In a care plan you are able to leave detailed instructions around your future care. You may have certain decisions already made around resuscitation on life support, pain relief and organ donation. Put your preferences in writing by completing an ‘Advance Care Directive’ and nominating someone to make medical decisions on your behalf if you are unable to do so. Some care plans are incorporated in a Deed of Enduring Guardianship.

Step 6: Store Your Important Documents Safely

Finally, it is advised that you draft a document with all your important passwords and account details. This may include bank account details, debts (including loans), investments, insurance and superannuation details. You may choose to store this information in an envelope with your Will, saying, ‘Open in the event of my death’, or something similar. We allow clients the opportunity to store important documents with us (in safe custody) without charge to them.

Further information

It is important to be fully aware of what it takes to make a Will and other related documents and obtain professional legal assistance to ensure your wishes are accurately represented in those documents. If you would like further information regarding Wills or general Wills/ Power of Attorney / Guardianship advice, please do not hesitate to contact one of our experienced estate planning solicitors on 9963 9800 or via email at [email protected].