A family death is an event that can bring out both the best – and the worst – in people and according to Queensland lawyer Paul Brennan, there is a lot more money around to argue about nowadays.
Lawyers can sort it out in the end, one way or another, but it may be helpful for the family members to know in advance what may potentially happen in the event of a controversial will.
Please keep in mind that this information is general in nature and not legal advice. Getting professional advice when considering your estate planning requirements is recommended.
- A person left entirely out of a Will may well make a claim. A Deceased’s right to leave their money to whoever they please has been eroded. Close relatives can make a claim – so be prepared.
- Mediations work. It is difficult to say why. In the 80’s we did not do Mediations. Matters tended to settle 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.
- Bad conduct must be really bad to disentitle a person left out of a Will. The family black sheep may be left out of the Will for good reason, but his/her behaviour may not be enough to have him/her disentitled completely. So consider whether the behaviour is well proven and supported by a statutory declaration from the Testator who will not be around to give evidence when required.
- 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.
- 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.
- 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 may, under some conditions, be forced to honour it.
- 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.
- 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.
About Paul Brennan
Paul is a commercial and litigation lawyer. Deals and disputes including will disputes. He practices with his wife who is also a lawyer.
Brennans solicitors is on Queensland’s Sunshine Coast. http://www.brennanlaw.com.au/
He is author of several books including “The Legal Guide to Dying…Baby Boomers Edition” and “Hang On To It Girl: The Wily Woman’s Guide to Wills”. For more information go to http://www.amazon.com/Paul-Brennan/e/B001KMQFEC