Will’s are intended to be clear instructions as to how assets are divided after a death occurs. There are many different ways assets can be shared amongst remaining loved ones and this is decided by the deceased if they have made a Will. If the deceased has not made a Will, their assets are divided according to legislation.
Typically a Will is a private document, and the division of assets is only disclosed to beneficiaries after a death has occurred. Sometimes relatives may become disgruntled because they have not received what they expected under the Will. This may drive them to contest the Will. A Wills and Estates lawyer like Kerry Davis at KLD Legal can help when something like this happens.
After someone passes away, their Will needs to be granted probate by the Supreme Court, so that their executor has the legal authority to deal with the deceased’s assets. The executor is the person who the deceased has named in their Will as being responsible for paying all of the deceased assets and then distributing the net assets in accordance with the Will. A similar but more complicated process occurs when a person dies without making a Will. Kerry Davis at KLD Legal can apply for and obtain probate for you at a fixed cost.
Legally, someone who actually stood to inherit something in the last or a previous Will, and other close relatives in certain limited circumstances can contest a Will or the Letters of Administration (if no Will existed). This pertains mostly to spouses and children but is very fact-driven in that the surviving members of the deceased’s family, the financial circumstances of the person contesting the Will, and their relationship to the deceased all have to be assessed to determine whether or not they have a proper legal basis for challenging the Will.
Whenever there is a death in the family the surrounding period is full of grief and pain. Courts are slow and applying for probate and or letters of administration (if there is no Will) can drag out, if you don’t understand the procedure. KLD Legal can make sure that your application is dealt with efficiently and quickly. If the Will is contested the process of administering the deceased’s estate will be drawn out even longer. Should the person contesting be successful the cost of their claim may also be paid for out of the deceased’s estate. This is something most people want to avoid as it means there is never really a winner. Court fees are expensive and can drain an estate at an alarming rate. Kerry Davis can help you avoid having your Will, or the Will of family members contested.
Writing an Air-Tight Will
To avoid having your will contested and your assets distributed in ways you didn’t intend, there are a few things you can do. Number one is to have your Will written by a Wills Lawyer. Not every lawyer has the expertise to write a will that can’t be contested, but Kerry Davis at KLD Legal has the knowledge and skills to make your Will as airtight as possible, given the existing legal framework.
It’s important to regularly get your Will updated any time you experience big life changes, like marriage, divorce or having children, so all your assets are covered and no one can contest your Will because it is out of date. Keeping copies of any correspondence with your lawyer will also help prove the legitimacy of your will and also stop anyone who contests claiming it doesn’t truly represent you or you weren’t of sound mind when it was written. Kerry Davis takes instructions on your current circumstances, and always seeks to draft a Will that is legally binding and enforceable for as long as possible.
Setting Up a No Contest Clause
A lot of people mistakenly believe that if they are worried about relatives contesting their Will they can include a no-contest clause. By a no-contest clause, people mean a clause stating that if a beneficiary contests the will during probate they will get nothing. There is no clause in Australian law that will prevent someone from contesting your Will, but you can include a clause that may reduce their chances of being successful with challenging your Will. Ultimately, the ability to successfully contest a Will is very fact-driven, and the circumstances referred to above all need to be assessed and weighed.
If you’d like to learn more about who may have the legal right to contest your Will, whether their basis for doing so is strong or weak and to take steps to minimise their chances of successfully contesting your Will contact Kerry Davis today! She is an experienced Wills and Estates Lawyer in Perth and will be able to give you any information you need and assist you with making sure your Will is as uncontestable as possible.