When Might You Need an Estate Lawyer

June 4, 2021

Blogs

ARTICLE

News & Insights

Related Articles

Insights

ARTICLE

June 2, 2022

Insights

ARTICLE

June 2, 2022

There are two overriding purposes of Will-making and Estate planning, firstly to ensure that a person’s assets are distributed after their death in accordance with their wishes, and secondly to minimise the risk of any other person making a claim against the estate.

Distribution of assets

More than half of Australians do not have a Will or Estate plan in place for when they die. If you pass away without a legally enforceable Will, the laws of the state you live in will determine how your assets are distributed. There is of course no guarantee that, in the absence of a legally enforceable Will, your assets will be distributed to the people and in the manner that you intended.

Making a legally enforceable Will prepared by an estate lawyer is the only way to be confident that your estate will be managed after your death how you wish.

Lowering the risk of disputes

If a claim is made against an estate (for example, by a family member cut out of a Will), it is inevitable that the estate will incur significant costs defending the claim and the beneficiaries will be delayed in receiving their distribution. 

While in some cases claims against an estate may be unavoidable, for the sake of your beneficiaries it is worth taking whatever steps you can to minimise the risk of disputes after your death. 

Your Will can be challenged in Court if you have not adequately provided for your dependants (such as a spouse or children), or if the Will does not meet technical legal requirements.

A common claim made against estates is an action known as a family provision claim. Under the Succession Act 2006 (NSW) an eligible person (normally a spouse, child or dependant of the deceased) may apply to the Supreme Court for orders rectifying a Will to obtain greater benefit from a deceased person’s estate than they would otherwise be entitled to. Any claim must be made within 12 months of the deceased’s death.

In deciding the application, the Court will have regard to whether the will of the deceased provides adequate provision for the proper maintenance, education or advancement in life of the plaintiff. The ambit of proper maintenance includes the totality of the plaintiff’s position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility. 

If adequate provision has not been made under the will, the Court is empowered to alter the disposition of assets of the deceased person’s estate. In determining this, the Court has regard to the plaintiff’s needs which are to be distinguished from the plaintiff’s desires. 

In relation to a challenge to a Will on technical grounds, a common issue that arises is whether the testator (the person making the Will) had legal capacity to make a Will. Your lawyer will use well-established principles to confirm that the testator has capacity, including whether you:

  1. understand the nature and effect of a Will;
  2. are aware of the general nature and extent of your property;
  3. are aware of family members of others who might reasonably be expected to have a claim on the testator’s property;
  4. can evaluation the respective strengths and weaknesses of those claims.

In some cases where a will is made and there is a question about their capacity, it can be prudent to obtain a medical report confirming the person has capacity to make a will.

Takeaways

Estate planning is not a “set and forget” exercise. Individuals’ personal and financial circumstances constantly change and for this reason it is necessary to give ongoing consideration to your Will and Estate plan. An estate lawyer can help guide you through this potentially complex process.  

Carneys Lawyers regularly advise clients on all aspects of Estate planning and litigation in the Supreme Court. Contact us to make an appointment to discuss etc…