Each time you update your Will, you’ll want peace of mind knowing your assets will be distributed as intended. There are several administrative measures you can take before your passing to make contesting your Will difficult.
Can You Stop Someone Contesting a Will in NSW?
No. You cannot stop someone from Contesting a Will in NSW.
Australians have 'testamentary freedom' to leave their estate to whomever they please. However, a will-maker has moral obligations to care for certain individuals, such as their spouse, child or dependents.
It is impossible to remove an individual's right to contest a Will, but you can implement estate planning strategies to make contesting less attractive.
Inter Vivos
An Inter Vivos (Latin for 'between the living') is a trust created between living persons. Following this Trust, a settlor's funds or property will no longer form part of their estate.
This type of trust fund is designed to provide regular or discretionary payments to a beneficiary.
It's worth noting the NSW Succession Act works to prevent people from using Inter Vivos as a means to neglect people entitled to a share of an estate.
Restructure Asset Ownership
By way of a Trust Deed or similar document, the owner of an asset declares another person the asset holder for a Trustee.
Once the Trust is implemented, the original owner loses control and benefits from the asset. Doing so is irreversible, so it's vital that this Restructure Asset Ownership not be taken lightly.
Two of the most common trusts are Discretionary & Testamentary.
Discretionary trusts enable a Trustee to choose individuals who will receive capital and income from the Trust. Testamentary trusts are created by Wills, giving assets to a person to hold for the benefit of another, often because they are under 18 or incapable for other reasons.
Strategic Ownership Arrangements
In Australia, two or more people can hold property as ‘Tenancy in Common’ or ‘Joint tenancy’.
Tenancy in Common (or Tenant in Common) is an arrangement whereby people co-own the same property but with no rights over the other's ownership portion. The portion you own is ‘willable’. The share held by others is not.
Joint Tenancy is an arrangement where ownership of the property is held equally. Joint asset holders sometimes wish to have equal rights, so if one dies, the other(s) automatically become the owner. Most often, joint tenancies are between spouses.
Leave Life Insurance Outside Your Estate
In most cases, life insurance proceeds cannot be used to pay estate debts. By naming a person as the beneficiary of your life insurance, you avoid having the funds included in your estate (and thus can't be contested).
Have a Binding Death Benefit Nomination with your Super
As the name would suggest, a Binding Death Benefit Nomination (BDBN) is a declaration you give to your superannuation provider to pay benefits to particular beneficiaries.
Superannuation is not an estate asset unless a Trustee decides to include it in their estate.
If you are unsure how to direct your super fund, you should consult a will solicitor who can ensure you make an accurate nomination and ensure your loved ones are taken care of.
Talk to the Wills and Estate Experts
Taylor & Scott has been providing valuable advice and winning difficult cases since 1905. Get expert legal advice on creating, updating and contesting Wills in NSW.
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