Is a Will set in stone?

There is a growing category of people who are eligible to challenge a Will in Court, seeking that a provision be made on your Will for them. This can happen even where you have specifically stated you don’t want it to.

There are some recent cases which show a trend in the Courts to consider the financial needs of someone seeking to challenge a Will rather then the actual contribution they made to the testator’s welfare or any bad behaviour the testator disapproved of.

In 2010 the Supreme Court of NSW handed down a decision in Rogers v Roe. Elizabeth Rogers and Susan Roe were sisters. Elizabeth had been estranged from her parents for 20 years and was left nothing from her late mother’s estate. Susan was described as a “loving and dutiful daughter” and was left everything. Notwithstanding the deceased’s views on her daughters, the Court ordered the estate be shared equally between them. This was because Elizabeth was in financial need: she had no assets, little income and was a carer.

There also appears to be more challenges to gifts left to charities and, again, Courts are increasingly upholding these challenges.

Adult children seem to be increasingly allowed to remain dependent on their parents, even after death, convincing a Court that they have a need for a house deposit, funds for education and they have no financial means themselves.

Can grandchildren contest a Will?

Where there is an existing relationship of dependence, yes. This means the grandparent has taken on the responsibility of providing for the grandchild, usually financially. For example the grandparent was the grandchild’s carer or guardian, an increasingly common situation.

Why bother with a Will?

Do not be put off making a Will. Make sure your Will is up to date and have a solicitor prepare it. There are certain legal requirements for a valid Will. Coutts Legal can help you state your intentions clearly. If you die without a Will your estate will be divided up according to a set formula which may be contrary to your wishes.

At Coutts, we can prepare your Will and provide you with advice if you are considering leaving someone out of your Will. We can also advise you on your options if you have been left out of a Will.