This article is republished courtesy of the original author, Brett Davies Lawyers. Please contact them directly for any questions and advice you may need on this topic.
Who can challenge a Will?
It doesn’t matter who you are – all Wills can be challenged by certain people. Potential challengers can only come from 5 types of relationships:
- Your parents
- Your spouse (including de-facto partners)
- Your children (adopted children but not children born from sperm or egg donation)
- Your grandchildren
- Anyone that you are ‘maintaining’ (but not in all States).
At Brett Davies Lawyers, we encourage you to expressly name any unintended beneficiaries (for example, a de-facto girlfriend) in your Will. This shows the Court that you have not merely ‘forgotten’ that person. This is a ‘considered person clause’. This does not stop them from challenging, but makes it harder for them to be successful.
I’ve heard stories where sneaky people stop challengers by giving them $1 dollar in the Will. Can I do this too?
Sadly, you can’t stop anyone from challenging your Will. I’ve heard these stories too – but they are only successful in overseas jurisdictions (such as the USA). In Australia, if the challenger falls within any of the five categories above, then they have a right to challenge.
Nothing you can do can take away this right. For example, you can’t say:
- “I give my de-facto $1 and she cannot challenge my Will”.
- “I give $20,000 to my partner, but if she challenges my Will then the gift is void.” (known as the Lang Hancock clause because he tried to use this in his Will – obviously without success).
- “I give the whole of my estate to my partner, but if she remarries then this gift is void”
- “I give the whole of my estate to my partner on the basis that she remains Anglican and attends church every Sunday”.
All of these are void for public policy reasons. You can’t use your Will to force someone to do or not do something. This is called ‘ruling from the grave’. The Supreme Court doesn’t like you trying to oust their jurisdiction like that.
What is the silver lining? Just because someone can challenge your Will, doesn’t mean that they are successful.
If you are concerned about people who may challenge your Will then ensure you speak with a specialist estate planning lawyer about drafting a Will for you.