Analysis of a Contested Wills by the University of Queensland shows that nearly three in four Contested Will actions are successful.  Whilst the research was conducted about 10 years ago, Lawyers say the findings reflect contemporary conditions.

This analysis of Contested Wills does not include the 90-odd percent of actions which settle before Trial either at Mediation or otherwise.

It therefore follows that the majority of actions in relation to Contested Wills are successful.  An example in the Supreme Court of Victoria where an estranged daughter devised a plan to murder her father with a crossbow did not prevent her from successfully challenging his Will and winning $3.25 million from his $12.4 million estate.  The Executor maintained that she had no moral duty to provide for a daughter who had refused to work and repeatedly abused her father.  Despite a family dispute, her father continued to support her financially by providing a weekly allowance, paying credit card bills and buying her an apartment.  Justice Elizabeth Hollingworth stated that the family disharmony reduced, but did not nullify, Peter’s moral duty to his daughter, stating:

“Courts have long recognised that family disharmony or disfunction and a parent’s disappointment in a child are commonplace in family relationships.  Such matters are only one of the factors to be considered by the Court.”

An action typically needs to be started within six months of the granting of Probate. An or an extension of time can be granted by the Court if the estate has not been fully distributed.

So the question is, how do you exclude someone from your Will?  There are a number of ways to do this.  Firstly, you can give your estate away during your life.  There are ramifications for this.  Secondly, you can set up a Trust.  The assets are held in the Trust but distributions from the Trust can still be contested in Court.  Thirdly, you can provide limited support to your beneficiaries.  The issue here is that providing enough for needs is one thing, but everyone’s needs are different.  The fourth way is to have the last say and closely document the reasons you wish to exclude someone.  It is recommended that a parent include their reasons for excluding a child beneficiary in a written document under oath or affirmation and not in the Will.  Whilst it doesn’t have to be sworn, such action is more deliberately thoughtful.  It needs to be carefully drafted, factual and not emotionally driven because this could be used against you.

If you require advice in relation to the above matters, do not hesitate to contact Alan Alpass at our office on 9725 0377.