Having the Last Word. Will making and contestation.

There has been a recent research project undertaken by three (3) Australian Universities and involving the Public Trustee in a majority of the states and territories.

The full report is published under the heading “Having the last word? Will making and contestation in Australia” published by the University of Queensland.

In essence, the principal findings and conclusions are as follows:

• although Wills are primarily used to distribute assets, their usefulness in nominating guardians, choosing Executors and clarifying funeral arrangements is usually undervalued;
• wills are a major component of later life planning and should usually be prepared with Enduring Powers of Attorneys, Enduring Guardianship Appointments and Care Directives for later life;
• increased longevity and need to fund living and care expenses across an older population appear to have increased the possibility and the incidence of Will contestation;
• wills should always be promoted as a “family document” but the distributions of family money should not be promoted as an entitlement amongst the wider family;
• increasing complexity of family structures and cultural considerations can regularly displace usual equal distribution to beneficiary principles;
• where there is a reasonable asset pool, the importance of seeking and obtaining professional advice should never be underestimated;
• most Wills are contested by family under relevant family provision legislation. Adult children are the most common claimants;
• whilst need is a common cause, a sense of entitlement and greed are also equally common;
• challenging a Will is problematic and always has economic, social and relationship damage/cost.
• Where Wills are challenged, there has been, in more recent years, a higher rate of success, leading to more Wills being “rewritten” by the Courts;
• will makers should be encouraged to review regularly and to ensure that a Will is a dynamic component of any preparation for later life;
• the research authors also maintain that the “sense of entitlement” from adult children as potential beneficiaries may need to be reviewed and challenged in any future community education process;
• the need to make changes to a Will over a lifetime is a significant issue that is not always addressed, and needs to be promoted;
• it is always important that a Will maker should understand that if a Will is not updated following changes in personal circumstances, family circumstances, relationship circumstances and asset changes, then the Will may not reflect the testator’s intentions at the time of death and it may not make provision for new or different relationships;
• most Will makers do not understand that the Will is designed to be a document which will take effect if necessary in the foreseeable future – and not in fifty (50) years time – and so, the document should be seen to be dynamic and therefore made to be relevant for the current circumstances, where possible;
• although the survey indicates that only 5% or 6% of families comprise step-children, the research indicated in those circumstances almost all Will makers believed that there was a reason to vary or make a distinction as between the benefits going to step-children as opposed to natural children. Almost without exception, all Will makers experience an overwhelming preference to ensure that what they want to happen, should happen – and the only way to satisfactorily do that will be by having a contemporary Will available at death;
• a new Will must always be prepared whenever you separate (or end a relationship) or whenever you start a new relationship – if you want to avoid a previous partner gaining access to your hard earned estate;


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If you have any questions or if you wish to discuss these findings in any way then do not hesitate to contact our Wills & Estate Lawyers on 02 9232 8033.