For many years, the law has taken the view that a person’s assets are generally theirs to dispose of when they die, in any way that they choose. It doesn’t take too much effort to imagine how this can lead to severe hardship for those left behind. For example, the death of a breadwinner could leave their spouse/partner and children destitute, if that breadwinner bequeaths their assets to a relative (or even a stranger) in their will.
To repair this kind of situation, laws have been passed in all Australian jurisdictions that allow a court to step in and redistribute an estate to provide for family members who should have been, and were not, properly provided for in a will.
There appears to have been a substantial increase in the number of will challenges in recent years. Part of this can be explained by education about one’s rights via the internet, but a major factor has been the massive rise in residential property values in Australia over the last two decades or so. A will maker needs to carefully consider how their will is prepared, if they want to minimise the risk of their loved ones falling into an expensive and heartbreaking dispute.
This preparation process will involve speaking to a lawyer who is an expert in estate planning.
It is important to speak to a local lawyer as, although there is much similarity, the laws do vary from State to State. For example, New South Wales has the concept of a “notional estate” where, in some cases, a court can deal with assets that were transferred before the death of the will maker.
Careful thought is required. The law considers the situation of a “wise and just” will maker, who is someone who understands that they may have duties to provide for certain family members, even if the relationship is difficult or “it’s always been done this way”.
Even the “safe” option of leaving everything equally can be dangerous.
An ounce of prevention is worth a pound of cure, so don’t cut corners when it comes to recording testamentary intentions.
The money saved by using a “will kit” from the newsagent could end up being paid many times over by your loved ones, after your death.