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How To Stop Someone Contesting A Will In Sydney

When a testator starts estate planning, one important consideration is the potential for a claimant to disrupt their carefully planned testamentary arrangements.  Although there is no certain way to stop someone contesting a will in Sydney, there are certain avenues that a testator can pursue. The right strategies can limit, if not altogether eliminate, the risk of legal dispute over a will in Sydney.

How To Stop Someone Contesting A Will In Sydney

As much as a testator might want to hear otherwise, the best approach to stop someone contesting a will in Sydney is to actually provide fairly for all eligible claimants against the estate. The test that the Supreme Court of New South Wales will apply to any claim is what would a reasonably minded testator do in the same circumstances?

As such, a testator should approach writing his or her will with a more pragmatic attitude and consult a solicitor as to what provisions are appropriate given the size of the estate and the financial needs of each prospective claimant.

A testator cannot prevent a less favoured beneficiary from contesting an estate by leaving them a small gift in their will. It is a common misconception that leaving a nominal bequest to someone prevents him or her from contesting a will in Sydney. In fact, this may have the opposite effect and demonstrate that the testator knew that the beneficiary was entitled to provision from the estate and failed to make adequate provision.

In many cases, it is the very person who the testator would like to exclude from their will that has the best claim against the estate. A reasonable testator is expected to make provision for the child who is unemployed with no prospects over and above the dutiful and successful child. 

Contesting A Will In Sydney: Eligibility

In Sydney, the Succession Act 2006 allows only people who were the closest to the deceased to dispute their will. The significance of this statutory restriction is that the court will stop someone contesting a will in Sydney if he or she cannot prove eligibility under the law. 

Only the deceased’s spouse (or former spouse), de facto partner or child has an absolute right to make a claim against an estate. A number of additional individuals are also able to contest a will if they can also prove financial dependence on the deceased:

  • A person who was cohabitating with and in a close personal relationship with the deceased; and
  • The deceased’s grandchild or a member of his or her household.

How To Stop Someone Contesting A Will In Sydney: Lack Of Grounds

The criteria for establishing a claim against a deceased estate varies slightly depending on the specific circumstances of the case, but the claimant must also satisfy a two fold test: he or she needs to establish financial need, and prove that the testator was morally responsible for their welfare. As such, if the claimant is financially secure, or the testator had no duty to provide for the claimant, then the claim will not be successful.

The measure of a claimant’s financial need will be taken from several different factors, including the age and health of the claimant, and their capacity to retain paid employment.

The testator’s duty to provide for the claimant will depend on the nature of the relationship. For instance, a parent has a greater duty to provide for a minor child than for a grown grandchild. In addition, a testator may have a higher moral duty to a claimant that provided the testator with material financial support at some point in the past, or otherwise contributed to the assets included in the deceased estate.  

Minimise The Impact Of Someone Contesting A Will In Sydney

There are some alternate ways for a testator to structure their assets before their death to minimise the impact of someone contesting a will in Sydney.

Firstly, the testator can choose to give gifts away during their life rather than leave instructions in their will for the distribution of assets. The incidence of parents and grandparents giving young family members “early inheritances” is growing, especially as it becomes increasingly more difficult for a first homebuyer to enter the housing market. Similarly, a testator can make sure that any of his or her real property or bank accounts are held in joint tenancy with their chosen beneficiary. This means that their half share passes directly to the other owner, and the assets are protected from even a successful claim against the estate.

It is important for anyone considering making an early inheritance to consult appropriate professionals, including legal and accounting experts.  If you are employing this strategy in Sydney you need to keep in mind that the Supreme Court can make a notional estate order and recoup these assets for redistribution.

It is always prudent to discuss estate planning with a financial consultant and an experienced wills and estates solicitor.

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

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Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
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