Key takeaways
In a world where 75% of will contests are successful, it's clear that the final wishes enshrined in one's will are not as final as they may seem.
Academic research suggests the trend of contested wills isn't slowing down, and with the rise of blended families, the battleground over who gets what intensifies. High property prices and living costs are further fuelling the fire.
If excluding someone from your will is necessary, make sure to document your reasons meticulously, ideally in a sworn affidavit separate from your will.
In a world where a staggering 75% of will contests are successful, it's clear that the final wishes enshrined in one's will are not as final as they may seem.
This rate of success tempts more family members to seek a greater slice of the inheritance pie.
Legal actions for a share – or bigger slice – of an estate is a big and growing business for lawyers who heavily advertise their services by encouraging litigants to test whether they got a “fair share” of an estate.
And this is at a time when even the most extraordinary family rifts don't deter courts from ruling in favour of the disinherited?
So I’d like to delve into how you can safeguard your legacy.
But first, let’s consider the case that rocked the Supreme Court of Victoria, where a child won a share of her dad’s estate – despite planning to kill him!
It's a stark reminder of the complexities involved in disowning a family member from a will, especially as we're amid a colossal intergenerational wealth shift nearing $3.5 trillion.
The Australian Financial Review reported the case of Jessica Joss, who, despite her tumultuous relationship with her father, Peter, and the moral reservations her mother (and executor) Judith, had, walked away with a $3.25 million payout.
The story goes that a daughter, despite being estranged and plotting a crossbow attack on her father, won a part of his $12.4 million fortune.
The judgment said Jessica, 64, who was born Jeffrey, had embarrassed her conservative Jewish family on numerous occasions, including attending her parents’ Orthodox synagogue to announce she was transgender and travelling to Tajikistan to fight with Muslims for the Northern Alliance, a loose coalition of militias in Afghanistan who opposed the first Taliban regime.
This 2020 decision put a spotlight on the blurred lines of "moral duty," even when the parent-child relationship is strained to its limits.
The court recognized that family disharmony, while significant, doesn't extinguish the inherent obligations a parent holds.
Of course, this opens a Pandora's box about what moral duty means today and how lawmakers grapple with its evolving definition.
Academic research suggests the trend of contested wills isn't slowing down, with nearly three-quarters ending in favour of the challenger.
And with the rise of blended families, the battleground over who gets what intensifies, challenging the very essence of succession and will validity.
High property prices and living costs are further fuelling the fire, with many seeing the courtroom as a viable avenue to uphold promises of inheritance.
And when "no win, no fee" legal services enter the fray, it only escalates the willingness to sever familial ties for financial gain.
So, what can you do to protect your estate?
Here are some strategies:
- Distribute While You Live: The simplest solution might be to give away your assets while you're still here. This approach has its pitfalls, though, including potential tax liabilities and welfare impacts.
- Establish Trusts: Trusts can offer a more controlled and tax-efficient way of managing your estate. They can shield your assets from disputes and ensure they're used as intended.
- Limited Provision: The courts tend to favor those who have been financially supported by the decedent, as was the case with Jessica Joss. Therefore, providing just enough to meet the needs without fostering dependency could be key.
- Own assets in a trust pre-death as passing control may be a more robust solution either pre or post-death.
- Documented Exclusions: If excluding someone from your will is necessary, make sure to document your reasons meticulously, ideally in a sworn affidavit separate from your will.
Remember, effective estate planning encompasses more than just drafting a will; it's about crafting a strategy that recognises the potential for disputes and mitigates them pre-emptively.
After all, an ounce of prevention is worth a pound of cure when it comes to preserving your legacy for the ones you cherish.
