1. A person left entirely out of a Will is likely to make a claim
- A Deceased’s right to leave their money to whoever they please has been eroded. Close relatives can make a claim. It is best to make some payment to try and deter that person from making a claim.
2. Mediations work. It is difficult to say why – In the 80s, we did not do Mediations. Ninety-nine per cent of matters settled a few days before the trial or on the steps of the court. Now Mediations can bring a dispute to an earlier and cheaper conclusion. Mediations are draining as they often take a full day. Success can turn on what time the car park closes or the traffic conditions
3. Bad conduct must be really bad to disentitle a person left out of a Will - The family black sheep is often left out of the Will for good reason, but his behaviour may not be enough to have him disentitled completely. In fact, the more hopeless he (or she) is the more assistance they may be awarded. So make sure the behaviour is well proven and supported by a statutory declaration from the Testator who will not be around to give evidence when required.
4. A Will is not always the answer; it can be the problem - If there is no Will and you are the closest relative you are in pole position to inherit. A Will allows the Deceased to give your inheritance to someone else. A donation to a good cause does not seem to be such a good idea when it is your inheritance
5. Mental incapacity is much harder to prove than you think - When someone is left out of a Will, this can seem a crazy decision, especially if the Deceased is of advanced in years. But suspicion is not enough; solid evidence is required.
6. In some states such as Queensland, the Will only covers the assets of the Estate - Properties held as joint tenants, and trusts (including superannuation) are not part of the estate. This can have unexpected consequences.
7. Promises made outside a Will can be binding - Anyone who has seen the film “Monty Python and the Holy Grail” may recall the Lord of the Manor taking his son to the window and saying “One day son, this will be all yours!” to which the son replied “What, the curtains, Father?”. If the father reneged on that promise in his Will, his estate could be forced to honour it. Conditions apply.
8. In some states such as Queensland, a Will can be changed after the maker loses capacity - Most clients have Enduring Powers of Attorney so that money can be moved around even if they have lost capacity. This may be enough, but if your inheritance is going to the wrong person through a quirk of fate it may be possible to get the will changed
9. A Will no longer needs to be as formal - This less formal approach may be fairer but has the potential for more disputes. The beneficiaries of a formal will can be disappointed by a later document which trumps the formal will. In Queensland a will made on an iPhone has been admitted to probate.
10. Have a thought for those left behind - If a death in the family results in a war zone with the attendant legal costs and bad feeling, something has gone badly wrong. The Deceased’s memory will be tarnished. Try to keep it simple. Testators should not leave the Will to the last minute, especially if their judgement is declining
The issues which lead to a Will Dispute are predictable and therefore could be avoided with the appropriate advice and timely action. But what fun is that?
© Paul Brennan 2016. All rights reserved.