Can’t I leave my estate to whoever I want?
The answer is ‘yes, and no’. You have the right to make a Will leaving your assets to whoever you choose, and in the proportions you determine. However, in every State in Australia, there is legislation in place that gives certain people the right to bring an estate claim for further provision out of your estate after you pass away. These claims are called ‘Family Provision Applications’ and if successful, can seriously change your testamentary wishes.
Who can make a claim?
Depending on where you live and hold assets, eligible claimants may include:
- Your spouse (married and certain de facto partners)
- Your children
- Your stepchildren
- Certain categories of financial dependants
There are other reasons why your estate can be challenged, and they include disputes over the wording of a gift in your Will or a claim that you did not have the cognitive capacity to make the Will in the first place, so that an earlier Will applies. A carefully drafted Will goes a long way to minimising the risk of poor drafting in the Will. And if you have any cognitive deterioration, we have the legal procedures in place to minimise the risk of a later allegation that you did not have capacity to make your Will.
How can I avoid my estate being attacked?
We can assist you with a range of estate planning strategies to minimise the likelihood or impact of an estate claim being made against your estate. These include transferring assets, Inheritance Agreements, gift and loan back strategies, super binding nominations and more. We strongly recommend that you obtain advice from an experienced estate planning lawyer before putting in place any of these strategies.
Putting in place a strong strategy
An estate attack has the risk of seriously reducing the inheritance you leave to your intended beneficiaries as well as causing delay and disruption to the estate and lives of those affected. It is one of the main reasons causing the ‘L shaped Inheritance’® (namely, your inheritance not passing down your bloodline, but off to third parties that you did not intend to benefit).
Estate First Lawyers specialise in providing advice to minimise estate claims. At our first consultation, we will advise you of your options and help you structure the best solution for your situation so that you can have peace of mind. We will provide you with a written fixed fee quote at our meeting before we proceed with the work recommended. We can also assist with any other estate planning needs that you may have.
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Please complete the form below. Alternatively, you can call us on 1300 132 567.
Our unique ‘4 easy steps’ makes the process easy
Expert Estate Planning with Fixed Fees
Meet With Your Lawyer
Whether we meet virtually or face to face, we will listen, answer your questions, craft your estate plan and provide you with a fixed fee quote.
We’ll Keep You Updated
You will receive draft documents to review. You can discuss your plan with us at any time you want.
Final Document Meeting
We will go through all of your final documents together to ensure the plan is exactly what you want.
Frequently Asked Questions
Why is it important to get advice on the risk of an estate claim?
Because an estate claim has the risk of preventing your testamentary wishes from taking place, causing your inheritance goes ‘L shaped’ to a third party that you did not want your wealth to go to. Also, the legal costs of defending an estate claim are very high and can easily reduce the size of your estate significantly.
How can my estate be attacked when I die?
Depending on your circumstances, your estate may be subject to an estate claim (family provision application), which is a claim that certain people are entitled to bring against your estate for further provision after your death. Further, after you pass away, a disgruntled person might also allege that you did not have testamentary capacity at the time of making your Will, that you were under undue influence from another person when making your Will or that there were otherwise suspicious circumstances surrounding the making of your Will. Therefore there are many ways someone can challenge a Will, and proper advice must be taken to reduce this risk of a challenge.
What is an Inheritance Agreement?
A common type of Inheritance Agreement which has been around for a long time is the ‘contract to make mutual Wills’. This agreement is usually in writing (but doesn’t have to be) and between spouses, agreeing to make Wills in a certain way and stating that each Willmaker will not change their Will after one of them dies. Such mutual Will agreements are very inflexible because they do not allow the survivor any room to make testamentary changes to their affairs, even though circumstances change.
Estate First Lawyers has recognised this problem, and we have spent significant time designing a more flexible agreement that allows the surviving spouse some freedom to make changes but requires an agreed percentage to pass to the ultimate beneficiaries (usually the children) on the surviving partner’s death. Click here to read more about Inheritance Agreements and Joint Wills.
How can I avoid my estate being attacked?
There are many strategies that can be implemented to minimise the likelihood or impact of such an estate challenge being made against your estate. These include the transfer of assets to another person or entity, binding death benefit nominations for super, Inheritance Agreements, Gift and Loan back strategies and many more.
These strategies, whether singularly or in combination, can be very effective in significantly reducing the risk of an estate challenge against your estate. They require the assistance of an experienced estate planning lawyer and should not be attempted to be implemented without expert legal advice.
"If your financial and family situation is a little complex, which ours is, you need professional support, to set all your affairs in order. The repercussions of not doing this can lead to fractured family relationships and inheritance being misappropriated. Thanks to the professional work of Estate First Lawyers I am confident that our Wills and EPAs will ensure this will not happen."
"Estate First Lawyers provided excellent advice and took the time ensure we clearly understood the strategies available to us. Our experience was a very personalised one with care and consideration afforded to our particular circumstances."