Do you have a wayward beneficiary? Has your child removed themselves from your family and refuses to have a relationship with you? How can you stop this person making a claim on your Estate?
Unfortunately, you cannot avoid Estate litigation, even if you feel you have a perfectly drafted Will. Any child or dependent has a right to contest an Estate in Queensland for further and better provision if they have not been provided for. Of course, there are exceptions to this, however, merely the cost of defending a potential claim on your Estate, could prove expensive and quickly reduce the size of your Estate for your beneficiaries.
If you anticipate your Estate may be contested when you pass away, there are some things you can consider in an attempt to reduce the risk and the potential cost of litigation for your Estate. Of course, there are also ways to reduce the size of your Estate to prevent particular assets from coming into the Estate as well. We can discuss this with you further also when discussing your Will.
We would recommend that you discuss your family circumstances with our office further so a plan can be tailored to your needs, but some consideration in relation to the following should be given.
(a) The most important aspect to consider is who you appoint as your Executor. If you anticipate a child or dependent will contest your Estate, then it may be best to choose an Executor who is removed from the family unit, and thereby not emotionally invested in the Estate. Choosing to appoint a spouse or child may unintentionally cost your Estate more in legal fees as parties take sides or simply disagree to win the battle of wits. You can of course appoint a solicitor to act as your Executor and make decisions in the best interest of the Estate without getting heavily involved in the emotions of the family.
2. Avoid leaving general bequests in your Will if you know there is the potential that it will cause a fight. We often find things the family fight over most, is things of sentimental value to them, such as jewellery, war medals or similar and this costs the Estate a great of money to address these issues and negotiate with the beneficiaries for a suitable outcome. An example of a general bequest in a Will – “I give all of my jewellery to my children equally” – without specifically naming what pieces of jewellery go where, the kids may all end up fighting over one ring of nominal value. You should consider either giving specific directions in your Will as to these items, or making a list of such items (ensuring the list is signed and kept with your Will), giving selected items to particular people. We would also suggest that you photograph the items you are giving to give clarity as to each gift. Your direction on a list is not binding on the Executor, however it would give them a direction as to how you wish to leave the items and thus hopefully avoid any fights in the family over who gets what items. When making this list, you should also consider household items, such as furniture and chattels. This has also caused great issues in the family when trying to disburse with the household items, and it is often the Executor left to deal with these items when you pass away.
3. If possible, gift equally to your children (and step-children) equally and consider anyone that may be able to make a claim on your Estate. Disputes often arise if one child feels like they have been unfairly treated and other children have been treated as the favourites. We understand that this is not always a client’s wish, as a child has removed themselves from any sort of contact with them. You should also consider if a current partner (defacto or otherwise) would make a claim on your Estate. If this is the case, then we would advise you as to how you would support any decision not to leave a gift to a particular beneficiary. Often, a Statutory Declaration would be prepared on your behalf setting out the reasons why you do not wish to leave a gift to a particular person. But each circumstance is different so it would be best to discuss it with you directly.
4. Engage a solicitor to help you. The solicitor will be able to cover off any issues that may restrict a family provision. An example, a disgruntled beneficiary may allege that you did not have capacity at the time of making your Will. A way to ensure that this does not happen is to obtain a report from a treating general practitioner at the time you make your Will to show that you do have capacity to understand and enter into a Will. Also, another issue sometimes raised in a claim is that you were coerced. A solicitor will ensure they meet with you alone, take your independent instructions. This way the disgruntled beneficiary cannot say the family member who was present at the time of making the will influenced you in the decisions you made.
If you have some issues with your family, or just generally wish to speak to us about your Will, please contact our office for a free review of your Will.