Australians Challenging Wills!

Why are an increasing number of Australians Challenging Wills?

This is a question that four of Australia’s universities found extremely interesting. So interesting that they researched it and released a research paper called “Having the Last Word – Will Making and Contestation in Australia.”

The research undertaken found that adult children are the most common people to challenge a Will and that challenging a Will has a high rate of success either through mediation or the courts.  The research also found that 86% of Will challenges are from immediate family of the deceased with children making up 63% and partners (including ex-partners). 

A recent decision of the Supreme Court of New South Wales reinforces these statistics. In Mitar v Mitar [2017] NSWSC 647 the deceased, a widow, left behind four children, three daughters and a son, and an Estate valued at approximately $3 million dollars. In his Will the deceased left the whole of his Estate to his eldest daughter and a right to reside in the family house to his son. The deceased made no provision for his other two daughters however his eldest daughter, based on conversations had with the deceased,divided the cash in the Estate between herself and her two sisters of approximately $200,000 each.

The deceased’s son and two younger daughters all made family provision claims to the Court on the basis that the deceased had not made adequate provision for their proper maintenance, education and advancement in life. Making the son’s claim more complicated was his history of schizophrenia.

The three daughters came to a settlement of their claims during the Court proceedings reaching an agreement that two of them would receive 40% of the first $700,000 in the Estate with the third to receive 20% with the balance of the Estate to be divided in three equal shares. All parties sought that the cost of the Court proceedings be paid by the Estate.

The reason behind the settlement was that they believed this would be the amounts they would receive from the Estate in the event that their brother was successful in his family provision claim.

The deceased’s son was seeking an order from the Court that he be gifted the family home valued at approximately $1.9 million dollars.

The Court had to consider all the needs of the siblings when deciding whether to make an order for the deceased’s son to receive the family home. After consideration the Court found that making such an order would be unfair on the deceased’s other three children.

The Court held that the deceased’s son should receive 30% of the proceeds of sale of the family home, approximately $964,000 and that the daughters receive the percentages they agreed to in their settlement.

If you need advice on challenging a Will, then you need to seek legal advice from an expert Wills & Estates Lawyer. The team at Sydney Wills Lawyers – specialise in Wills & Estate Law and pride themselves on open and honest communication with clients. Conveniently situated in the Sydney CBD and close to public transport. Call today for advice on 9221 2779 or email info@hecken.com.au.