How to avoid your Will being challenged
In this video, I explain 2 reasons why a Will can be set aside. How to ensure you are protected.
Remember we have a lot of expertise in this area. We've defended claims and we've brought claims. If you've got any queries whatsoever about a Will or your Estate Plan, don't hesitate to contact us
VIDEO TRANSCRIPT
Ross Millen:
Hi. Hey, the other day I was scrolling through social media and what popped up: how we can prepare your will for $139, or whatever it was, which I don't mind. A lot of people can get a reasonable will (better than not having a will), but I was tempted to click on the comments and there were thousands of comments and, like most social media comments, they were remarkably ill-informed. People were saying, "What's the sense of having a will? Because everyone can get it set aside." "Oh gee, my grandfather's will was set aside and all the people came out of the woodwork and stole all his money," et cetera.
Now, that is really not the case. There are two main examples where someone's will might be set aside partly. Now, the first is if someone makes a will or a new will when they lack what we call testamentary capacity. If someone's got dementia and another family member takes them and says, "Oh, you know what? We're going to cancel your old will and leave all the money to me," well, obviously that's an example where we can come along and help people to challenge your will because it's been made by someone who lacks the necessary mental capacity to make a new will. They're often cases of undue influence. Medical certificates can be used later as evidence to show that someone had been suffering dementia.
Now, the second example, and this has got thousands of years of history about it, is that if someone dies and they don't leave an adequate provision for someone who they had a moral duty to look after, then that person can say to the court, "I didn't get left enough money." So if someone died and left all their money to the cat home rather than to their spouse and their young children, naturally everyone would say, "Well, those people need to go and challenge that will and get more money for their proper maintenance."
Now, in Victoria, there's a very limited number of people who can make such a claim. It's your spouse or a de facto, a former spouse or a de facto, children, registered carers. It's a very narrow group of people and they have to show the court that there was some moral duty to look after them, and also that their financial circumstances mean that they're entitled to get more out of the will than what it says.
Now, we have a lot of expertise in this area. We've defended claims and we've brought claims. So if you've got any queries whatsoever about a will or your current will or your estate plan, don't hesitate to contact us. I'm Ross Millen from Millens leading the Millens team in wills and estates. Thanks very much.
