Charlotte Lockhart - How to set up a Will that can stand up to challenges

Publish Date
Friday, 18 November 2016, 1:39PM
By Charlotte Lockhart

As a legal document, a Will can be challenged in court. A well-structured, legally sound Will will be less likely to be vulnerable to a challenge, and more likely to serve as your final testament to your wishes at the end of your life.

On what grounds can a Will be challenged?

There are several pieces of legislation that a Will must obey, depending on the circumstances of the Will-maker:

  • If you die and leave a living spouse/partner, the Property (Relationships) Act 1976 means it is assumed that all assets are relationship property. When you are giving instructions for your Will, or updating it, ask yourself:
    • Will my partner receive less than half of the total relationship property when my Will comes into effect?
    • Do I have a previous spouse/partner who may have a claim because division of relationship property has not yet been legally finalised?
  • Certain family members are given the right to claim against your estate if they do not feel they have been adequately provided for under your Will, in accordance with the Family Protection Act 1955. Those who have a right to claim are:       
    • A spouse or partner (civil union or de facto partner, including same-sex partner)
    • Children (can also mean children who you may have had little or no contact with)
    • Grandchildren
    • Stepchildren (including, in some circumstances, the child of a de facto spouse)
    • Parents

In determining the extent to which a claim against an estate should be met, the court considers factors such as whether you had a duty to provide for the claimant, and the claimant’s need for some financial provision. Ask yourself whether you have excluded any possible claimants in your Will, or left them an entitlement that is less than they might expect to receive (such as unequal treatment of children).

  • The Law Reform (Testamentary Promises) Act 1949 allows a person to claim against your estate if you breached a promise to leave them something in your Will in return for work or services that they provided you with.

For a Will to be valid, the maker must have been of sound mind at the time of drafting and signing the Will, and cannot have been coerced in any way. Making your Will through a family lawyer or trustee services company, and updating it through the same channels, will help to protect it against any challenges in this regard, and help to ensure that your Will is consistent with all applicable laws and therefore less vulnerable to challenges.

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