Take a look at what happens when someone wants to contest/challenge a Will:

Understanding the basics of contesting a Will

Before delving into the intricacies of challenging an Will, it’s essential to grasp the fundamentals. Each state in Australia has its own laws that govern Wills and Estates, but there are a few points that tend to be the same across the board.

In Australia, a Will can be challenged on several grounds:

• Lack of testamentary capacity: To create a valid Will, a person must have the mental capacity to understand the implications of their actions. This means if it can be shown that the testator lacked the capacity to make rational decisions when the Will was completed, there may be grounds to contest.
• Undue influence: If there is evidence to suggest that the testator was unduly influenced by someone when creating their Will, it can be challenged. Undue influence may involve coercion or manipulation.
• Forgery or fraud: If it’s suspected that the Will is fraudulent or has been forged, it is not legal and can be contested.
• Family provision claims: In many states, family members or dependents who believe they have not been adequately provided for in a Will can make a family provision claim. This allows family members to petition for what they believe to be a more fair share of the inheritance.
• Invalid execution: A Will must be executed in accordance with the law. If the proper procedures were not followed during its creation, there are grounds for challenge.

The challenging process

Contesting/challenging a Will is not straightforward, and it often involves a lengthy and emotionally taxing legal process.

Here’s an overview of the steps involved:

• Consultation with a lawyer: The first step for anyone considering challenging a Will is to consult an experienced estate lawyer. They will assess the case’s merits and provide guidance on whether it’s worth pursuing legal action. Attempting to challenge or defend a Will without legal counsel is highly inadvisable.
• Notification to executors: If a decision is made to challenge the Will, the executors and beneficiaries named in the Will must be formally notified. This initiates the legal process.
• Filing a court application: To formally challenge a Will, an application must be filed in the appropriate court. The specific court will depend on the state’s jurisdiction.
• Mediation or negotiation: Depending on who is involved and who objects to the Will being challenged, parties involved may attempt to reach a settlement through mediation or negotiation before going to court. This can save time and legal costs and is often the best solution if it is possible.
• Court proceedings: If a settlement cannot be reached, the matter will proceed to court. Both sides will present their arguments, and the court will make a decision based on the evidence and applicable laws.
• Court decision: The court’s decision may involve upholding the Will, making alterations to it, or declaring it invalid. The court’s decision is legally binding.

It is important to understand that there are strict timeframes that you must adhere to if you want to challenge a Will.

Before you challenge a Will

Before you decide to contest a Will, you should spend some serious time discussing the implications with your lawyer. Any steps that can be taken to settle the matter out of court are worth exploring for the mental well-being of all involved.

If challenging a Will means going against the wishes of other parties such as the deceased person’s family members or business partners, it may be worth hiring a professional mediator to talk the issues through in order to come to an amicable conclusion.

Need help to challenge a Will? Reach out to Legal Affairs Lounge today.

Disclaimer: The information contained in this news post is general in nature and is intended to provide a general summary only and should not be relied on as a substitute for professional advice. Whilst the information is considered to be true and correct at the date of publication, changes in circumstances after the time of publication may impact upon the accuracy of the information.

So, how do you update a Will after separation?

What is a Will?

Very briefly, a Will is a legal document that appoints a beneficiary or beneficiaries of your belongings and assets in the event of your death.

What if I don’t update my Will after separation?

Your Will is a legal and binding document, regardless of when you signed it. If you die before you update yours, the wishes that are legally documented will be used to distribute your assets, even if you have since changed your mind.

This can result in assets going to a person who is no longer part of your life.

How does divorce affect my Will?

Under Australian law, divorce affects a person’s Will in different ways depending on the state or territory you live in. In some circumstances, a divorce can completely nullify a Will, but this is not something you can rely on. Plus, in these cases, you could be left without a Will, which can cause its own complications.

In most states, though, a divorce will nullify any gifts or bequests appointed to a former spouse unless a judge believes it is still your wish that they should receive them.

Why update a Will after separation?

It is very important to note that while an official divorce can nullify parts of your Will, separation does not.

If you are separated but yet to be divorced, then your Will is still likely to be legally binding.

This is why you should move quickly.

Updating your Will

• Assets

The first step is to review your existing Will and identify any changes that need to be made. It’s very likely that you have appointed your former partner as an executor or beneficiary, so you need to remove them.

You also need to consider who will be responsible for distributing your assets after your death. If you have your former partner down as your executor, aim to remove them and appoint a new executor instead.

It is also important to review any trusts or other arrangements that you have in place. If you have a trust for the benefit of your former partner, you may need to modify or revoke it to ensure that your assets are properly distributed according to your wishes.

• Estate

In some cases, a separation or divorce can result in a complex estate planning situation. For example, if you have children from a previous marriage or relationship, you may need to consider how your money and assets will be distributed to ensure your children are adequately provided for. You may also need to consider how your assets will be distributed if you have a blended family.

If you have children under the age of 18, it is important to appoint a guardian in your Will. The guardian will be responsible for the care and well-being of your children if you pass away. If you have recently separated or divorced, you may need to review your choice of guardian and consider whether your former partner is still an appropriate choice.

Get support to update your Will after separation or divorce

Your needs and wishes should be priority as you go through a separation. When you work with an experienced lawyer, the process to update your Will and make sure it is legally binding should be straightforward.

Give yourself and your family peace of mind. Reach out to Legal Affairs Lounge to start preparing your Will today.

Disclaimer: The information contained in this news post is general in nature and is intended to provide a general summary only and should not be relied on as a substitute for legal advice. Whilst the information is considered to be true and correct at the date of publication, changes in circumstances after the time of publication may impact upon the accuracy of the information.

To help you nominate the right person, here’s a rundown of what a Will executor’s tasks include.

What do executors of Wills do?

The executor of a Will has to:

• Administer your estate after you pass away
• Ensure all debts are paid
• Close your accounts
• Oversee the disbursement of inheritances in accordance with your wishes

It is also usually the executor’s job to arrange your funeral. They can use funds from your estate to pay for it.

The Will executor may need to go through the process of probate. This is a court order granted by the Supreme Court of Queensland that confirms:

• the Will is valid
• the executor has permission to distribute the estate

Probate is usually required if you leave behind property and a substantial amount of money. Grants of probate usually take around 20 business days and the process includes:

• gathering supporting documents such as an affidavit
• publishing a probate notice
• waiting 14 days
• submitting a probate application
• responding to Requisitions from the court.

After probate is confirmed, the person responsible for executing your final wishes and finalising your estate will have to answer the following questions:

• What do you wish to happen to your remains?
• Who needs to be notified about your passing?
• What will happen to your property and belongings?
• Who is entitled to what percentage of the money that comes from the sale of property and other assets / who are the will’s beneficiaries?
• How will belongings and funds be distributed?

Your executor will ideally have access to your accounts after you pass away. If you have a list of providers for them to get in touch with, they will find the process much easier. Consider your:

• Phone and internet provider
• Gas/electricity provider
• Insurance providers
• Subscriptions (e.g. Netflix etc)
• Gym memberships
• Housekeeping services etc

Think about bank, superannuation and investment accounts as well; it can take a long time for your executor to access accounts (executors generally can only access your bank accounts once probate has been granted by the Court.)

Ask your lawyer to hold onto these details for safekeeping.

Who should execute your Will?

Being executor of a Will can be stressful and time-consuming. When you nominate someone, keep this in mind.

Most people choose a family member or trusted friend. Sometimes, two people are nominated, either to execute the Will together or as an alternative if the first choice is unavailable or incapable of taking on the responsibility.

Often, siblings are nominated as joint executors. This can help ensure everything is kept ‘fair’ during the Will execution process.

Some things to consider include:

• You can nominate someone who is a beneficiary
• You can add a clause to your Will to ensure your executor is compensated for their time and efforts
• If you appoint joint executors, make sure they are able to work well together
• You can nominate a lawyer or trustee instead of a family member. Usually, payment for their services will come out of your estate but make this clear when you ask them to act as executor, so they don’t come up against pushback from your family.

If you do nominate a family member, they can work in conjunction with a solicitor to ensure they get everything right.

Make your executor’s life easy

A rushed or unclear Will can make things very difficult for an executor. The more questions you can clearly answer in your Will, the better.

Write down your wishes in a formal Will, store relevant information safely with a lawyer and have everything prepared formally and correctly so you don’t create unnecessary stress for your executor when the time comes.

The right approach to Wills and executors will give you and your family peace of mind. Reach out to Legal Affairs Lounge to start preparing your will today.

Disclaimer: The information contained in this news post is general in nature and is intended to provide a general summary only and should not be relied on as a substitute for legal advice. Whilst the information is considered to be true and correct at the date of publication, changes in circumstances after the time of publication may impact upon the accuracy of the information.