RSM Australia

Avoiding a Will dispute

One of the most difficult issues facing parents is how to treat their non-farming children fairly, whilst at the same time leaving the valuable farm to the farming child or children. 

We all know that it is highly likely that treating all children equally will put the farm viability in serious jeopardy. What is fair to one child may be considered very unfair by another. 

As farmland over time increases in value, we have come to see more Wills being contested. Throw in some family friction; possibly disgruntled in-laws and quite likely the legal costs of the claimant(s) being paid from the estate, the chances of a Will being disputed can be high. non-farming

Some children believe whether they are farmers or not, that their birth right provides them with an equal share of their surviving parent's estate unless there are special circumstances. 

Victorian laws allow any person who believes that a deceased person failed to make proper provision for his or her maintenance and support can dispute a Will. 

The claim must be made within six months from the date of grant of probate, but the Court can allow an extension of time in special circumstances. 

Will challenges create a lot of stress, expense and invariably tear families apart.

Claimants may include parents, siblings, grandchildren, step-grandchildren and de factos. A former spouse may be able to satisfy the Court that the Will maker had a responsibility to provide for them. 

There are many factors that the Court will consider when deciding on any claim against the estate. They include the size of the estate, the claimant's age, health and financial position, the financial position and health of other beneficiaries, the nature and length of the relationship between the claimant and the deceased and the contribution made by the claimant in growing the deceased's estate. 

Disputes over Wills can also lead to claims for other reasons. 

For example, legal action is sometimes taken against an executor for failing to correctly administer the estate in accordance with the terms of the Will. farming

There can also be claims alleging that the Will maker was under duress or undue influence by another person. 

Another example of when a claim can be made is where it is argued that the Will maker did not have mental capacity when making the Will and thereby rendering the Will invalid. 

Making a Will and keeping a Will up to date should be a high priority. As we have seen it can be a very contentious document. Clearly, there will be more work for the Courts and the legal profession going forward. 

The easiest solution, at least in Victoria, could be to simply remove as many assets as possible from your estate before you die, so that there is less to argue about after you die. The key is to maintain control of those assets for as long as you wish. Obtaining the right advice would be a good place to start.

Bill Beard is a director at RSM and can be contacted on 03 5330 5800 or bill.beard@rsm.com.au.

Important:  This is not advice.  Items herein are general comments only and do not constitute or convey advice per se.  Also, changes in legislation may occur rapidly.  We, therefore, recommend that our formal advice be sought before acting.