“I have this dream my daughter in-law kills me for the money
She thinks I left them in the will
The family gathers ’round and reads it and then someone screams out
‘She’s laughing up at us from hell'”

– Anti-Hero, Taylor Swift

 

Who would have thought even Taylor Swift has dreams about her estate planning nightmares. Thoughts of your daughter-in-law killing you for inheritance might not plague you specifically, however ensuring you have properly considered who you wish to benefit from your estate to minimise conflict in the future is something RJM Wills & Estates can assist you with.

Here are the most common scenarios we see when it comes to contesting Wills:

Excluding a child from your Will

Each state and territory in Australia has specific legislation which under certain circumstances permit a child who has been excluded from the Will to challenge or contest that Will. This isn’t an automatic right and the success of any claim will always turn on the specific facts of the case. You may have valid reasons for wanting to exclude your child from your Will, but a well thought out estate plan will minimise the risk of that child being able to successful sue the estate.

With the family dynamic ever changing and the “modern family” being ever changing, the law cannot have a one size fits all approach.

There are strict time limits on when a Will can be contested after death and these vary state by state.

A lack of testamentary capacity

Testamentary capacity is the mental capacity each adult must have when they are writing their Will. In order for a Will to be valid, the testator (the person who wrote the Will) must be of sound mind, memory and understanding.

Wills are often contested for a lack of testamentary capacity most commonly when:

  • The Will was done shortly before the person’s death;
  • The deceased was very ill (dementia, psychosis or a neurological or psychiatric disorder) at the time they signed their Will;
  • The deceased was removed from or isolated from their family or loved ones when the Will was signed.

Medical assessments by a specialist or general medical practitioner at the time of preparing and signing the Will can become imperative in proving a person’s testamentary capacity after their death.

Undue influence

With the aging Australian population, elder financial abuse is becoming more and more common.

In the context of Wills, this occurs when an older and usually more vulnerable family member has been influenced or sometimes bullied by a relative, friend or sometimes even a carer to change their Will to exclude certain people.

In other instances, a vulnerable family member may be pressured into transferring property during their lifetime thereby ensuring that property is no longer in their estate and unable to be gifted in their Will.

Of course, everyone has the freedom to dispose of their property as they see fit but where a transfer of property occurs during lifetime due to the undue influence or unconscionable conduct of another person, Australian courts have held that these transactions may be set aside.

 

If you suspect you have been left out of a Will due to coercion or if a family member has pulled a Taylor Swift and left you out of their Will, then book a free call with us.