Brisbane’s Legal Lowdown: Can someone contest my Will?

Sofie: It’s time for this week’s Brisbane Legal Lowdown with Attwood Marshall Lawyers, and today we’re tackling a really common and often emotional question: can someone challenge my will? How often do I need to make sure it’s updated, and what happens if you’ve left someone out on purpose?

They’re tricky conversations, but they’re important ones to get right.

Joining us here at the 4BC studios this afternoon is Lucy McPherson, Estate Litigation Partner at Attwood Marshall Lawyers and I’m going to chat with Lucy about this subject, but if you’ve got a specific question that you’d like to ask her, jump on the open line 133 882 or text it through to 0499 880 882.

Good afternoon and welcome, Lucy.

Lucy: Hello. Thanks so much for having me today.

Sofie: Now, this is really something that many people worry about, and I will also say many other people ignore when it comes to being prepared with a will. Why do you think we’re so reticent to be on top of it?

Lucy: I think ultimately it comes down to not a lot of us like to think about our own death, do we? Yeah. And it’s a very uncomfortable topic for some, well, for many to think about what’s going to happen after we pass away. And the disputes that can arise in relation to those matters when we’re gone.

Sofie: One of those issues is the idea of having a will contested after you’ve passed away? You know, sort of the issues that you leave behind, even if you’ve made your wishes clear or you think you have in a will.

Lucy: Absolutely, definitely, and it is a very emotionally charged area. So, you know, I think that’s another reason why people find it so difficult to speak about and to think about and to plan for. But it’s really important to plan ahead for these sorts of things, to make sure that your wishes are upheld.

Sofie: So in a case where there might be two or three kids in a family and there’s one parent that’s remained with an estate and then one of those children is not in the will at all, can they contest it even if the decision was intentional?

Lucy: Yes, they can. Yes. So, under legislation in Queensland, an individual who has a defined relationship to a deceased person can bring a claim against the will to contest the terms of the will if they believe that they haven’t been adequately provided for.

Not just anyone can bring these type of applications, they have to have a certain defined relationship to the deceased person, but in a scenario that you’ve just spoken to that that child would be eligible to bring a claim on the estate.

Sofie: There would be people to say, well, that’s not fair. You know, if that father made the decision that that child wasn’t going to get anything and then they contest it and they can appeal it through that application, then it’s not really his wishes.

Lucy: Absolutely. And we hear that all the time. It’s not fair, but unfortunately, the laws not fair. This particular legislation is based in this notion or this idea that we all have a moral duty to provide for certain people in our lives when we die.

So, I like to use the example of my circumstances, I have two minor children and a dependent husband. And if I were to go and leave my estate to the Guide Dogs Association, then the community might, you know, consider that that’s a situation where I had a moral duty to provide for those who were financially dependent on me.

So, this area of family provision law is heavily based in that notion of moral duty and moral obligation to provide for certain people in our lives.

Sofie: Does it mean then that if you really feel strongly about favouring a sibling or a child or an organisation that you should probably think about having that wish granted while you’re still alive if you can?

Lucy: Well, there are a number of ways that you can mitigate against a claim being made on your estate, and that is one strategy to consider ultimately divesting yourself of assets before you pass away. Yeah, so that your estate..

Sofie: Yeah, that’s what they meant. I just didn’t know how to say it in lawyer talk.

Lucy: It is a strategy and it’s a sound strategy, particularly within the jurisdiction of Queensland. Over the border in New South Wales, there is legislation, anti avoidance legislation if you like, that doesn’t allow that to be a very sound strategy in an estate plan. But it can be here in Queensland, it can be a very sound estate plan if you want to avoid a claim being made on your estate, gifting assets before you pass away, so making what we call inter vivos gifts before you die. But there are, you know, complications in those strategies as well. Things like stamp duty, taxation implications, Centrelink implications, these things need to be really thoroughly considered when strategizing an effective estate plan.

Sofie: Daniel wants to know how often a will should be updated?

Lucy: That’s a really good question because my experience is that a lot of people think that they make their will and then it’s done.

Sofie: Set and forget.

Lucy: Yeah, exactly. But no, that’s not the case. Wills should be updated whenever your personal circumstances change, because your circumstances that change may have an impact on how that estate plan falls or comes to fruition after you’ve passed away.

Sofie: And what if you put a letter with the will? This is another question. What if you’ve put a letter explaining your decisions in a letter? Like saying what you want to choose or who you want to leave out. Does that make any difference?

Lucy: So what you’re referring to is what we what we call a letter of wishes or a memorandum of wishes, which is a common document that accompanies a will, if you like, to set out a Testators or will-maker’s reasoning for making the will in the way that they have. Look, a letter of wishes can be a very helpful document to provide clarity to your family, to the executor of your estate, or even perhaps to a court one day in relation to why you have distributed your estate in the way that you have under your will.

But it’s really important to remember that a letter of wishes is not a legally binding document, so a letter of wishes is generally a document that provides guidance and clarity. It doesn’t provide binding directions to the executors in relation to the distribution of your estate.

Sofie: This one is anonymous, it says afternoon Sofie. Is there a time frame that someone can make a claim on a will?

Lucy: Yes, this is a very important question. In Queensland for family provision claims, which we’ve been speaking about, an individual has nine months from the date of death to file proceedings in court, and they must place the executor of the estate on notice in writing of their intention to bring a claim against the estate within six months from the date of death.

Sofie: And how do you choose, or what should you be thinking about when it comes to the executor of your will?

Lucy: The appointment of the executor of your will is an extremely important decision to make. The person that you choose to be your executor is somebody that you must trust implicitly, because that person that individual will stand in your shoes to carry out your wishes when you die. Your executor ultimately has the same legal authority that you have during your lifetime and stands in your shoes after you pass away.

So it’s really important that you trust that person to make the decisions that you want to be made in relation to the distribution of your estate.

And further to that, if there is a claim brought on an estate, it is the executor of the estate who is named as the respondent to defend the proceedings.

Sofie: And what if that executor is also the person who is a beneficiary?

Lucy: That’s an interesting question because there are certain circumstances where that can give rise to a conflict of interest, because their duties as the executor are, if you like, and their obligations as the executor can in some scenarios conflict with their interests as a beneficiary as well.

In those scenarios, sometimes it’s possible to propose that somebody independent comes in, so somebody is appointed who’s an independent party to administer the estate.

Sofie: What if you die without one? Like what happens then? Do you see cases where people have to turn to trying to find a lawyer who can sort of dismantle somebody’s life when they’ve left no wishes behind?

Lucy: If somebody dies without a valid will in Australia, their estate is distributed in accordance with the laws of intestacy, that’s what we call it. And intestacy is just a legal term for how an estate is distributed in the absence of a will.

And the intestacy rules are set out in each state-based legislation and it provides a, if you like, a statutory formula for the distribution of an estate in those circumstances.

Generally speaking, and this is very general because it does vary between jurisdictions, but generally it’s the spouses and children who are first to inherit under the rules of intestacy. But it flows down through various relatives of the deceased person and you know, often it can be difficult to find that person who is going to be beneficially entitled in an estate.

Sofie: I know every now and then you hear these stories about somebody passing away, and it’s a relative that hasn’t been seen or heard of for a really long time. And then they have to go and find, you know who’s related to who and then they realise that everything’s been left to them, and then all of a sudden you know this poor old uncle that they’ve never heard of, met in their lives, they’re the ones that have paid off their mortgage for them.

Lucy: Could you imagine receiving a phone call one day?

Sofie: I would like to receive that phone call, Lucy. I’m not going to lie. I think one of the hurdles as it is with most areas of law and last week we talked about or last time we had Attwood on, we talked about the Bank of Mum and Dad and this, you know, need to just have a document so you know, here we are again talking about something that people know that they should do and may be put off.

And one of the questions, the last question just came in from a listener to say, Sofie, how much does a very straightforward will cost on average? Are people put off by the idea of thinking it’s going to cost them a fortune?

Lucy: Look, I think some people may be put off by that idea, but I assure you it’s not the case. I mean, it’s for a very simple will, I think it’s a very affordable exercise, but ultimately it depends on the person’s circumstances.

For somebody who has a very complicated situation with a blended family, say for instance, family trusts involved, self-managed superannuation funds, you know that might be a bit more of a complicated situation where it’s going to take a little bit more time to go through the issues.

But for a very straightforward, simple will, I’m of the view that it is a very affordable exercise and certainly it’s a worthy investment because if you get the right advice and draft your will appropriately and take the right steps when you’re alive, you can save your estate and your family thousands, tens of thousands of dollars after you pass away.

Sofie: Yeah. Is it one of those cases, though, if you do it and you set it up properly and you do it in the first place, then maybe tweaking it later isn’t going to be the same amount of work required if you’ve just got small changes you need to make?

Lucy: That absolutely can be the case.

Sofie: If you died, does your estate automatically go to your spouse if you’re partnered or married? And if that is your wish anyway, who could challenge that?

Lucy: So that goes back to the intestacy rules that I was just talking about. So when you die without a will, your estate will be distributed in accordance with the rules of intestacy, and a spouse in Queensland is the main beneficiary under the rules of intestacy. But the intestacy rules can still be challenged under the family provision legislation that we were talking about.

Sofie: Like kids? Could kids say I want a piece of the action?

Lucy: Absolutely. Children, stepchildren, adopted children, and dependents. There are a number of different categories.

Sofie: It certainly does get more complicated too once you start to see blended families.

Lucy: Absolutely.

Sofie: Finally, Brett says, my brother and I haven’t spoken in fifteen years, but my mother recently updated her will and made us joint executors of that will in order to have us cooperate during the settlement of her estate and hopefully resolve the problem.

If I don’t want to deal with my brother, can I appoint a legal firm to act as my representative, dealing with my mum’s will?

Lucy: Oh this is a really good question. Look, my experience is that warring executors or executors who do not get along can procure a very catastrophic situation for the administration of an estate.

Back to the question that you were asking about the importance of who you choose to act as your executor, it’s also an important consideration if you’re appointing multiple executors, that they get along because they have to make decisions together during the course of the administration of an estate.

Sofie: I don’t know if that helps our listener this afternoon, maybe we can give you a direct line to have a conversation directly. Lucy, thank you so much. That’s Lucy McPherson joining us this afternoon to answer your questions. She is the Estate Litigation Partner at Atwood Marshall Lawyers. Appreciate your time.

Lucy: Thanks so much.

Sofie: It’s eleven minutes to three. So, I received a few more texts from listeners about costs, and I can tell you I asked Lucy, she said for simple wills, those that don’t require sort of complex issues, you’re really looking at an investment of up to about $500, which in the grand scheme of things, if you’re talking about a will and an estate, maybe well worth the money.

Things that obviously are more complex and require more work from a lawyer are going to be more than that. But if you’re looking at a ballpark of somewhere in the vicinity of $500, it just may be something to consider.

I also received another text just after we finished talking from Greg, who asked about the wills that you can buy at the newsagents. He says, what about the wills that you buy from the news agent? Can you just use one of those, fill it out, if the will is very simple and get a witness? Or do you have to go through a lawyer? I also asked Lucy about that, Greg, and I have to be honest, she sort of said those are the sorts of situations that keep people like her in business, because those can be challenged and don’t have the same degree, obviously of scrutiny that may be you would be able to protect yourself with if you went through the path of having a lawyer look at your estate and your will and your wishes for you.