With the right guidance, you can draft a will that leaves little room for confusion and helps your family avoid unnecessary stress later. Photo: YuriArcursPeopleimages.
The last thing anyone wants is for family conflict and legal drama to heighten loved ones’ grief when they pass away.
The obvious fix here is to make sure you have a current will in place. Unfortunately, even the most well-intentioned wills can be challenged, especially if your wishes are unclear or the document isn’t legally sound.
Disputes aren’t all that unusual when tricky relationships are at play. The risk goes up significantly when one person receives a larger share than others or is left out of the will altogether.
So, how can will-makers reduce that risk?
The first hurdle to overcome is making sure your will meets all the legal requirements. At a bare minimum, this means a written document that is signed by you, witnessed by two non-beneficiary adults at the time of signing and shows clear intent.
Knowledge is power, so your first point of call to record or update your wishes should be a specialist with extensive experience.
One of five partners at DDCS Lawyers, Theresa Dowling has more than 15 years in wills and estates law under her belt. Complicated estates with difficult family dynamics are her bread and butter.
“In Canberra, the vast majority of will disputes fall under the headings of family provision or lack of capacity,” she says.
“Family provision claims contest a will based on whether the gift to the claimant is adequate, while lack of capacity claims question the will-maker’s cognitive ability when it was made.
“There are a few other reasons why a will might be challenged, including undue influence, forgery, fraud, or need for rectification, but they’re less common in the ACT.”
Theresa warns against online or do-it-yourself will kits. They might seem easy and cheap, but are fraught with difficulties and regularly wind up the subject of litigation. Photo: DDCS Lawyers.
In Canberra, the only people who can dispute a will under family provision are the deceased’s partner, a person who was in a domestic relationship with the deceased for at least two years, a child (including adult children), or, in certain circumstances, a stepchild, grandchild, or parent of the deceased.
When it comes to avoiding estate disputes, Theresa recommends clear and frank communication with your family and other beneficiaries during your lifetime.
“Your beneficiaries are generally the people closest to you, so sitting down to talk through your wishes could be all that’s needed to prevent conflict when the time comes,” Theresa says.
“It’s often the grief and shock of an unanticipated outcome, or inability to understand the deceased’s reasoning, that drives litigation after death.”
Careful planning can sometimes provide a strategy to avoid litigation by removing assets from the estate entirely. For ACT assets and estates, this could be achieved by gifting part of your estate while you are still alive, holding the assets jointly, or moving them into a trust.
It can also be helpful to obtain a medical evaluation before creating or updating your will, especially if you are elderly or have a pre-existing condition that could call your cognitive ability into question.
Finally, if your loved one’s will is disputed, don’t forget that professional mediation is an option. It’s also a compulsory requirement before a final court hearing.
The process is confidential and generally faster, cheaper, more flexible and more likely to resolve in a way that suits everyone.
No matter how simple or complex their estate may be, Theresa advises every will-maker to invest in a specialist lawyer from the very beginning.
“A large, complicated estate might cost a few thousand dollars to secure, compared to hundreds of thousands in litigation fees,” she says.
“It’s worth noting that litigation fees generally come out of the estate itself, so the longer a dispute goes on, the less is left for intended beneficiaries.
“When you factor in the emotional cost and potentially irreparable damage to family relationships, that initial investment becomes a no-brainer.”
For more information, visit DDCS Lawyers.
