How sacred is your Will?

July 20, 2018

in Estates and Wills

In recent times there have been a number of cases reported in the media in relation to various prominent families where there have been disputes regarding the provisions of a Will which have had unequal or even excluded beneficiaries. Many people therefore ask their lawyers as to how secure is their Will against challenges from various parties and if Wills are so open to challenge why bother making one at all?

The answer is that your Will can be challenged by a number of parties including those beneficiaries who would be entitled to claim under the Family Protection Act which is a piece of law from 1955 which is still in force and is used regularly where a disaffected member of the family claims that there has been a breach of a “moral duty” by the testator (the will maker).

There is also an ability to challenge a Will under the Testamentary Promises Act which enables anyone to make a claim against an estate where the testator has failed to honour a promise to someone who has carried out work or services for the benefit of the deceased in their lifetime. There are a number of legal hurdles that have to be overcome in respect to what amounts to work as well as the proof of the promise of the reward for same.

Most people will also be aware that the property relationships law also enables a spouse, civil union partner or de facto partner of 3 years or more to claim against an estate if they have not been appropriately provided for in a Will and in the absence of a Contracting Out Agreement.

The question most people are concerned about is whether offspring ie. children who have become alienated can be excluded from a Will and whether all children need to be treated equally as beneficiaries of a Will. These are complex issues and each case will depend on the circumstances however the very general rule is that there is no primary obligation to treat all offspring equally and a will maker is entitled to exclude a child if that child has alienated themselves from the will maker as distinct from those offspring that are deliberately alienated by the will maker.

The Courts however often will consider that there has been a breach of a moral duty by the will maker in cases where there has been a serious inequality or exclusion of a beneficiary for reasons that are not justified. Often the will maker will leave a detailed letter with their lawyer setting out the reasons why they have made unequal provisions or have excluded a member of the family completely and often these are for very good cause and those letters will assist the Court in its determination of such challenges.  If you have a trust you may want to set out your wishes in a Memorandum outlining to your surviving trustees how you would like the trusts assets to be distributed but you need to be aware these Memoranda of Wishes cannot be binding on the trustees as their discretions are legally unable to be hindered in law and need to be followed in accordance with the trust deed.

Farry & Co Solicitors are experts in this field and can prepare your Will, attend on challenges to the Will and assist with a Memorandum of Wishes for your Trust.

If you require any advice or further information on the matters dealt with in this publication please contact the lawyer at Farry and Co. who normally advises you, or alternatively contact:

Michael Nidd
03 477 8870


The information contained in this publication is intended as a guide only. It does not constitute legal advice and should not be relied upon as such.  Professional advice should be sought before applying any of the information to particular circumstances.  While every reasonable care has been taken in the preparation of this publication, Farry and Co. does not accept liability for any errors it may contain. 

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