While the ageing of the Australian population is a fact, having a Will and a Power of Attorney is important not only for the elderly, but for practically any person.

Regularly we see messy estates where the deceased did not think they had an estate worth making a Will for!

Recently for example a young man died after an accident at work. His estate became entitled to a payment of over $400,000, quite separate from his superannuation. He had not made a Will and his estate went to his next of kin…including his father who had abandoned the family when the deceased was a young child.

Things may change, and if you die, your partner may have a new person in her or his life, who may not be so caring about the needs of your child(ren). If your partner dies too, she or he may leave your estate to the new person so that the inheritance will not reach your child(ren). Of course this does not sound very romantic, but lawyers deal with situations like this a lot.

People who make Wills must be of sound mind, memory and understanding at the time of making the Will. A person is regarded as having testamentary capacity (that is, being of sound mind) if they:

• Are able to understand what a Will is
• Realize the amount and type of property they have
• Are capable of considering to whom they have moral obligations when deciding who to leave property to.

When people are old and/or sick, a Will can be challenged on the grounds that the will-maker (“testator”) did not have sufficient capacity. If the issue of capacity is likely to arise, a solicitor will usually obtain evidence of your testamentary capacity, such as a medical certificate from your doctor or have this doctor act as a witness when the Will is signed.

Your executor or administrator (a person appointed in a Will to carry out the provisions of the Will), to be able to deal with the estate, usually must make an application to the Supreme Court for the “grant of probate” – a court order confirming the validity of a Will.

The formalities associated with the signing of a Will are critical and the Court may throw out a Will when the Will was not properly drawn up. For instance, if a Will has been witnessed by one of the beneficiaries, or by the beneficiary’s spouse the gift to that beneficiary will almost certainly fail. A person who is engaged to marry a beneficiary should not witness the Will.

But who would be able to challenge a Will and for what reason?

Generally, these people include a spouse (or ex-spouse), grandchild, child or a dependant left out of a Will without proper maintenance and support. If the first three categories sound familiar, a “dependant” is very wide and includes anyone the deceased was maintaining or supporting.

In a recent case of this type, a mid-age female, who has been assisting an elderly gentleman on a private basis in his house for a few years, to the surprise of the other members of the deceased’s family, managed to make a claim upon the estate alleging that she was financially and emotionally dependent on the deceased.

These categories of people can make a claim on the estate if they have been left out of a Will. Taking into account how much money the deceased left, the Court can give these claimants what it thinks fit, depending on their financial position. The Court will likely support people with disabilities or illnesses that prevent them from earning. For wealthy ex-spouses and fully grown-up children there will be less sympathy.

Cases with spouses, ex-spouses, grandchildren and children, aggrieved by the Will, are usually understood by general public. For ex-spouses, for instance, the Court will take into account the effort that has been put into building the deceased’s wealth, together with the conduct of the ex. Usually, a great deal of evidence needs to be placed before the Court to prove the claim is reasonable.

The claims which may be brought by “dependants” sometimes are not easily understood. With recent changes in legislation, we strongly recommend you consult a lawyer if anything in the above scenarios sounds like your personal circumstances.

Under new laws from March 2009 an application under the family provision legislation now must be made within 12 months of the death (instead of 18 months as was the case before).

Australia has been an immigrant society, probably more so than any other nation. The flood of immigrants in the years since 1945 has contributed to about 40 per cent of Australia’s population growth.

About two years ago we were acting for a sixty plus year old woman who resided in a remote Siberian village in Russia. The father went to the Second World War soon after the daughter was born. Her father never saw her since.

The father ended his days many years later in Australia living with a partner and her children from previous relationship. The majority of the estate was left by the father to his new partner. The Siberian daughter was able to challenge the Will. Adult children would, in normal circumstances, be able to establish a claim better than non-related dependants. Whereas the key factor will still be the needs of the applicant, in practice however, the court perhaps will be more receptive towards the children’s application. Very often such claims settle by negotiations on an-out-of court basis.

A word of caution comes here though for a prospective challenger of a Will. The legal costs of contesting a Will can be substantial. The costs are usually paid from the deceased’s estate, however, the Court will not allow you the costs for unsubstantiated claims, make no mistake. At Doyle Wilson we will give you the right advice and our commitment in these complex family and inheritance matters.

Read more about the author, Igor Kazagrandi

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