Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 25 November 2017.
Many of my columns detail circumstances whereby a will is successfully challenged and I am often asked; “Why bother making a will?”.
Here’s why.
Although you can’t stop an “eligible person” from making a claim for further provision, proper estate planning that considers the needs of eligible persons and provides them with some provision can prevent a claim.
If an eligible person receives some provision under your will, they face the risk of being unsuccessful in asking a court to give them more. If they are unsuccessful, the court can make orders against them to pay the legal costs involved in their unsuccessful application. Upon obtaining legal advice, it may be that a potential claimant does not wish to take that risk.
If you have made a will, it will appoint an executor. If a claim is made, it is up to your executor to defend a claim. You therefore have the ability to appoint an appropriate person to deal with a potential claim. Your executor has the ability to resolve a claim in its early stages and can potentially avoid the legal costs involved in litigation.
If a claim is made, your will is the starting point. It is up to the claimant to invoke the discretion of the court to alter the terms of your will. If you do not make a will, the rules of intestacy apply, which may mean that the persons you wish to benefit from your estate face an uphill battle. For example, under the rules of intestacy, a de facto spouse will receive the bulk, if not all, of your estate and without a will, your children would need to argue that they are entitled to more.
If a claim is not made, the administration of your estate is much easier and less costly if you have a will in place.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
