How to Make a Will that Cannot Be Contested in Australia
According to Australian Commonwealth, law that governs six states and seven territories, there is no guarantee that a will cannot be successfully contested. However, there are safeguards that can be taken when making a will that is valid in Australia to make it difficult for challenging a will after probate.
If the person writing the will takes into consideration the reasons to contest a will, he or she can write their will to reduce the possibility the contest will be successful. People should not underestimate the importance of writing a will that is unambiguous about their wishes.
Who Is Entitled to Contest a Will
The first defence against all reasons to contest a will is for the person writing the will to write a separate explanation of why he or she left someone out of their will or why only a token amount was given. This note will be taken into consideration by the court at the time the contest is filed.
Problems may also arise if a person changes his or her will during a fit of anger that they may later regret. An eligible person may be cut from the will that should be included. If a person has any idea to cut someone out or change their will in any way, it is recommended that they wait for a few days and think about it before they make the changes official.
If a person wants to contest a will successfully, there are certain things he or she needs to prove in order to be allowed to contest. Here are some of the most common laws in many states. First, the deceased must have resided in the state or territory where the contest is being filed and has assets there.
The person contesting must prove that he or she is eligible to make a claim by being a designated Eligible Person. Each state and territory has different categories of people who may contest a will. Usually, a brother or sister of the deceased is not considered an eligible person. The only people who can contest a will are the deceasedís spouse or former spouse, children, grandchildren, registered caring partners and dependents.
The person contesting must also prove that the deceased had a duty or responsibility to provide proper support and maintenance for the lifestyle he or she was used to during the deceasedís lifetime.
Challenging a Will
In most states and territories, challenging a will after probate must be done within six months. In some cases, the court may allow for a late contest, but this will be granted on a case-by-case basis and they would need the advice of a lawyer. In addition, the court fees for challenging a will come out of the estate, so there is no cost for the person contesting.
Strictly, the executor's commission must be authorised by the court. The executorís commission is allowed if his or her conduct in the administration of the estate is correct in the execution of his or her duties. If there are any irregularities or misconduct, the executor's commission may be refused. If the negligence was an honest mistake, the commission may be allowed, but if the negligence is significant, the commission may be reduced or in serious cases denied.
The Grounds for Contesting a Will
According to all State Acts, the grounds for contesting are in the following circumstances:
- There is evidence of tampering or not properly executed
- It was not the last will drawn up by the deceased
- The deceased was tricked or improperly influenced by another person
- The deceased lacked sufficient mental capacity or understanding to create a will
- It does not give proper provision to family members and dependents
In order to write a will that has little or no chance of being contested, the language in the will must be clear and precise. If this is the case, and if there is an accompanying note to explain any reason someone was left out of the will, the court will rarely interfere with the wishes of the deceased.
ABOUT THE AUTHOR: Qld Estate Lawyers
Queensland Estate Lawyers is a speciality firm under the prestigious Carter Capner Group which specialises in will disputes and estate administration.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.