Why bother making a Will if it can be challenged anyway?
Occasionally a client will question the necessity of having a Will due to the possibility of it being challenged, it's important to remember the following:
Control Over Estate Distribution: A Will allows the testator to specify exactly how their assets should be distributed after their death. Without a will, the estate will be distributed according to the laws of intestacy, which may not align with the testator's wishes.
Appointment of Executors: A Will enables the testator to appoint trusted individuals as executors to manage the estate. This can help ensure that the estate is administered according to the testator's wishes.
Minimising Disputes: While a Will can be challenged, having a clear and well-drafted Will can significantly reduce the likelihood of successful challenges. It provides a legal document that outlines the testator's intentions, which can be crucial in resolving disputes.
Provision for Dependents: A Will allows the Will-maker to make specific provisions for dependents, including minor children, which can be crucial for their care and financial support.
Flexibility and Updates: A Will can be updated as circumstances change, allowing the testator to adapt their estate plan to reflect their current wishes and family dynamics.
Legal Protections: There are legal mechanisms and strategies that can be employed to minimise the risk of a successful challenge, such as obtaining medical evidence of capacity, documenting reasons for specific bequests, and ensuring the Will is executed properly.
By addressing these points, you can reassure the client that having a will is a critical component of estate planning, providing clarity and control over their affairs, even in the face of potential challenges.
It is important to remember only assets that form part of the deceased Estate can be accessed if a challenge to your Will is successful. Assets held in a trust or company, as a joint proprietor, or distributed prior to death will not for part of the deceased’s estate. Comprehensive estate planning by a lawyer should provide strategies that may put your assets beyond the reach of a successful challenge to your Will.
DISCLAIMER: This article is provided for general information purposes only. It does not constitute specific legal advice or opinion. Although our aim is to provide you with as accurate information as possible, you should not act or rely upon the information in this article without seeking the advice of an experienced lawyer who specialises in the particular area of law relevant to your inquiry. Please do not hesitate to contact Murnane Legal to make further inquiries or to make an appointment to discuss the specifics of your situation.
