How to reduce the risk of contested wills in NSW is an issue more families are facing as wealth passes between generations and estate disputes become more common. While no estate plan can completely eliminate the risk of a legal challenge, careful planning and clear communication can greatly reduce the chances of a will being contested. Thoughtful and well-documented planning during a person’s lifetime is one of the best ways to safeguard an estate. You can also reduce misunderstandings and potential disagreements by keeping your Will current when circumstances change and by clearly outlining how assets are to be divided among siblings and children.
Family provision claims and contested wills in NSW
Under s 57 of the Succession Act 2006 (NSW), eligible persons may apply for a family provision order. They can do so if they believe the estate does not adequately provide for them. Eligible persons include spouses, de facto partners, children, and former spouses. They also include people who depended on the deceased or had a close personal relationship. When deciding these claims, the court considers several factors. These include the relationship with the deceased, the applicant’s financial needs, and the size of the estate.
To reduce the risk of these claims, a will should clearly reflect the testator’s intentions. The will should also show that the testator considered potential claimants.
Common Reasons Wills Are Contested
Contested wills often occur due to unclear or poorly drafted documents, unequal distributions among children, the exclusion of a family member without explanation, blended family arrangements, and adult children relying on inheritance. Careful planning and drafting can help minimise these risks.
Keep your Will Up to Date
Life circumstances evolve over time, and neglecting to update a will can cause unintended outcomes. Major life events like marriage, divorce, the birth of children or grandchildren, or acquiring significant assets or experiencing financial changes should trigger a review of all estate planning documents. Regularly reviewing your will helps prevent disputes caused by outdated provisions.
Document your intentions clearly
A well-drafted will is essential. Vague language or informal arrangements can lead to confusion and disputes among beneficiaries. A memorandum explaining the reasons for certain decisions can provide helpful context if the will is later contested. Consulting a lawyer when preparing a will is important to ensure it meets the formal requirements of the Succession Act 2006 (NSW) and accurately reflects the testator’s intentions.
Consider Structured Wealth Transfers.
Lifetime gifting can be an effective estate planning strategy, but it should be approached carefully. Once assets are transferred outright, the giver loses control of them. Where substantial sums are involved, formal arrangements such as loan agreements may help protect family assets and reduce future disputes. These agreements can also safeguard funds in the event of relationship breakdowns, creditor claims, or financial mismanagement. Estate planning involves complex legal, tax, and financial considerations. Professional advice from lawyers, financial advisers, and accountants can help ensure that estate plans are structured appropriately and comply with relevant laws. Planning ahead not only protects family wealth but can also preserve relationships by reducing the potential for conflict.
Other options include family trusts and testamentary trusts. These structures give you more control over how beneficiaries receive and manage assets. A testamentary trust is created by a will and takes effect on death. It may offer tax benefits and asset protection. You should obtain separate financial advice based on your circumstances.
Family communication and contested wills in NSW
One of the most overlooked steps in preventing contested wills is open communication. Although these discussions can be challenging, explaining the reasoning behind estate decisions can help minimise misunderstandings and resentment among beneficiaries.
Clear communication can also help manage expectations and prevent surprises that might otherwise cause disputes after death.
Conclusion
Ultimately, preventing contested wills involves more than just drafting a document. Good estate planning requires careful preparation, transparency, and a long-term strategy for managing and passing on wealth through generations.
Seeking professional legal advice can help ensure that your estate plan reflects your intentions, complies with relevant legislation, and reduces the risk of future disputes.
Jake McKinley notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Jake McKinley are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
