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Questions and answers secure wishes


Questions and answers secure wishes

It’s a common question: Can I ensure nobody contests my estate? The answer is you can’t but as MELISSA McDONALD explains, you can minimise the risk and also the chance of it being successful.

IT IS not uncommon for family members, including children, to be left out of a will. Reasons include estrangement, dispute, and benefits during lifetime.

Not having heard from someone in years will not protect the estate against a successful claim.  Estranged family members such as children or grandchildren may still have the right to benefit.

One exemption preventing them from benefiting is if their own behaviour and conduct is such that a court considers they should be disentitled. By the time a Court makes such a decision, the estate will have absorbed considerable legal fees and expenses in defending the claim, thus reducing the amounts payable to beneficiaries.

During a will or estate planning instruction meeting, a lawyer should ask detailed questions about your current circumstances, wishes and financial position.  The more detailed the questions and instructions, the more protection you offer executors in defending any potential claim.

Ascertaining your financial position ensures:

  • that you have sufficient means within your estate to satisfy debts and expenses and to meet your wishes (finances will fluctuate during your lifetime, but it helps identify any obvious issues at the point of instructions)
  • that you have appropriate clauses to deal with aspects that you may not have considered such as replacement directors in a company or trustees of a trust, or setting up trust provisions to protect particular beneficiaries
  • to assist the court should the issues of capacity be questioned. Knowing your financial position and providing clear instructions as to your intentions can support that you had capacity at the time of giving your will instructions.

Questions regarding your circumstances, or those of your beneficiaries, will assist in determining what clauses and provisions should be put in your will.

For example, if you have a disabled beneficiary, consider creating a special disability trust within your will to protect that beneficiary and their entitlement; or if you have a beneficiary in need of asset protection, create a discretionary testamentary trust.

The lawyer will also ask detailed questions about relationships, especially with those entitled to make a claim that have been excluded.

The more detailed the information and instructions, the more your wishes can be protected.

Remember that you won’t be here to tell your side of the story so detailed instructions will allow your voice to be heard.


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