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How To Stop Someone Contesting A Will in Canberra

When a testator executes a will in Canberra, he or she often assumes that they have absolute control over the distribution of their assets after they die. While it is true that the law affords a testator a degree of testamentary freedom, that entitlement is not inviolate. Eligible people have a legal right to dispute the provisions of a will in order to override the deceased’s instructions. However, a testator in Canberra does have some options to pursue to limit the chances of a legal dispute arising after their death. This article explains how to stop someone contesting a will in Canberra.

How To Stop Someone Contesting A Will In Canberra: Eligibility

Eligibility is the first impediment to anyone making a claim against a deceased estate. The Family Provision Act 1969 only allows those who were the closest to the deceased to file a Family Provision Claim to ask for a redistribution of the deceased’s assets. Specifically, eligibility is limited to the deceased’s current or former domestic partner, the deceased’s spouse, and a legally-recognised child of the deceased (both biological and adopted children). A stepchild, parent, or grandchild of the deceased is only eligible if they can also demonstrate a history of financial dependence on the deceased. The Supreme Court of the Australian Capital Territory in Canberra will not entertain a claim contesting a will from someone who is not an eligible claimant.

How To Stop Someone Contesting A Will In Canberra

The most effective way for a testator to minimise the prospect of a will dispute is to make sure that they do, in fact, make adequate provision for any eligible claimant. While families do fall out, and a testator may genuinely wish to disinherit a child or dependent, he or she should keep in mind that in the event of a will dispute, the court will ask themselves what a reasonably minded testator would do. Therefore it is only sensible to make adequate provision for close family members and dependents. If the testator is determined to leave nominal provision for a relative or disinherit them entirely, it is recommended that they leave clear justification for their decisions. 

How To Stop Someone Contesting A Will In Canberra: Asset Arrangement

When a testator is firmly resolved on their testamentary arrangements, they can make other preparations that will minimise the effectiveness of contesting a will in Canberra. There are options to pursue if the testator wants to stop someone contesting a will in Canberra because they want particular people to inherit specific assets. A testator can actually take steps to reduce the assets that end up in the deceased estate. For instance, a testator can choose to make a binding nomination for any superannuation payout or life insurance policy, so that the benefit is paid directly to the beneficiary without becoming an asset of the estate.

A testator can also ensure that their real estate and bank accounts are held jointly with their chosen beneficiary, typically their spouse. In this event, the asset or funds transfer without delay into the sole possession of the surviving spouse. As the valuable assets are never included in the deceased estate, in Canberra they are not subject to a claim against the estate.

Alternatively, a testator can elect to make gifts during their lifetime to family members in need of financial assistance, to charitable institutions, or close friends. This approach has multiple benefits, not least that the deceased will have the pleasure associate with making the gift, and it ensures that these assets are not left in the deceased estate after their death. A testator should use this approach with caution, however, as it can impact on their income support and taxation.

It is also important to caution that although this strategy is effective in Canberra, in some other jurisdictions the courts can order that past distributions are part of the notional estate of a deceased person. In certain interstate cases a court may even order that a recipient return a living gift to the estate for distribution to close relatives and dependents.

How To Stop Someone Contesting A Will In Canberra: Deadlines

There are time limits to stop someone contesting a will in Canberra years after the testator’s death. Once the Supreme Court probates the will, claimants only have six months in which to file a claim against the estate. Only under limited circumstances will the court hear an application after that deadline. This effectively stops someone contesting a will in Canberra except during a short window of time after the will is proved valid.

While there is no conclusive way to stop someone contesting a will in Canberra, there are strategies to reduce the chance of a will dispute and ways to remove assets from the deceased estate so that they are not subject to a redistribution.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

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Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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