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Over the years in my day-to-day prac­tise as a Solic­i­tor, my clients have shared all sorts of dif­fer­ent urban myths that they have heard through the grapevine about Wills.

I’d like to address some of the more com­mon ones:

Myth #1 — “If I leave a nom­i­nal amount of mon­ey to a ben­e­fi­cia­ry in my Will, this pre­vents them from con­test­ing my Will.”

This is incor­rect. If the ben­e­fi­cia­ry in ques­tion is an eli­gi­ble per­son as defined in sec­tion 57 of the Suc­ces­sion Act 2006 (NSW), then that per­son has a legal right to chal­lenge a Will, no mat­ter how much they were left under the Will.

An eli­gi­ble per­son includes the fol­low­ing:

  • a spouse or part­ner of the deceased, or
  • an ex spouse or ex part­ner of the deceased, or
  • a child of the deceased, includ­ing step child, or
  • a grand­child of the deceased, includ­ing step grand­child, or
  • a per­son who was at some stage a mem­ber of the deceased’s house­hold or had a close per­son­al rela­tion­ship with the deceased.

It is impor­tant to under­stand that just because a per­son has a legal right to Con­test a Will, it does not mean that they will nec­es­sar­i­ly be suc­cess­ful.

The Supreme Court has a wide dis­cre­tion when it comes to award­ing costs in these types of mat­ters. The days of the Judge mak­ing the Estate pay the legal costs of all the par­ties, espe­cial­ly in cas­es involv­ing small estates, are well and tru­ly gone and very care­ful com­mer­cial con­sid­er­a­tion needs to be tak­en before pro­ceed­ings of this nature are com­menced.

Myth #2 — “My execu­tor has the pow­er to change the way I have left my estate in my Will.”

This is also incor­rect. The executor’s role is to prop­er­ly admin­is­ter the deceased’s estate in accor­dance with terms of the Will. In sim­ple terms this means to ensure that the direc­tions in the Will are car­ried out.

In fact, if an execu­tor is found to have inter­fered with the assets of the deceased estate, to the detri­ment of a legit­i­mate ben­e­fi­cia­ry, the execu­tor would be faced with very seri­ous crim­i­nal charges.

Myth #3 — “How can I leave an inher­i­tance to my chil­dren for them to get when they become adults with­out their mother/father get­ting their hands on it before­hand?”

It is very com­mon for a par­ent to want to leave an inher­i­tance to their child/children with such inher­i­tance to be held  “in trust” until the child/children reach a spec­i­fied age (say 18 or 21 years of age).

If you die before the child/children reach­es the required age, the execu­tor must invest the inher­i­tance left to child in a bank account in the child’s name until he/she reach­es the required age under the Will.

This pro­tects the child’s inher­i­tance for them until they reach adult­hood and can access the funds them­selves.

Myth #4 — “There is no point in mak­ing a Will if some­one can con­test it.”

This is a rather defeatist’s atti­tude. The ben­e­fit of mak­ing a valid Will is that you have the oppor­tu­ni­ty of leav­ing your estate to those peo­ple who you want to. Or per­haps more impor­tant­ly, you have the oppor­tu­ni­ty not to leave any­thing to a per­son or per­sons who you do not want to.

In com­par­i­son to the num­ber of Wills admin­is­tered each year, only a very small num­ber of these are suc­cess­ful­ly chal­lenged and the major­i­ty of these cas­es are usu­al­ly resolved through medi­a­tion and nego­ti­a­tion with­out the neces­si­ty of expen­sive and lengthy Supreme Court pro­ceed­ings.

If you do not leave a valid Will, the rules of intes­ta­cy are strict­ly applied when it comes time to dis­trib­ute your Estate and you have absolute­ly no say or con­trol over who receives a dis­tri­b­u­tion from your estate.

For fur­ther infor­ma­tion please con­tact Dono­van Oates Han­naford on 02 6583 0400 or info@dohlaw.com.au.

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