By Scott Williams
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:
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.