The Unchallengeable Will

The Unchallengeable Will

At Danaher Legal we spend a lot of time advising clients in relation to making a claim against a person’s Estate and protecting people from claims made against their Estate.

We are often asked if it is act or fiction that you can make your Will unchallengeable. In short the answer is that it is possible to make your Will unchallengeable but specialist legal advice is needed. At Danaher Legal we provide this specialist advice.

Why is it so important to have an unchallengeable Will?

Whilst you as a Willmaker generally have the right to make a Will as you like, this is subject to the Administration and Probate Act. S91 of this Act provides you have an obligation to provide for the maintenance and support of those closest to you. If you don’t do this then those persons can challenge your Will.

In our experience, having been involved in many estate challenge matters, the costs of a challenge to a Will can be substantial and with the general rule that the  Estate bears the cost – the Estate can soon be eaten up in legal fees.

The alternative to the above is to have an Unchallengeable Will – or at least have an estate plan where the extent of the claim can be limited and where the persons you want to get your Estate take it. Depending on your circumstances there are many options available – some relatively easy to implement and others that require a strategy. Danaher Legal can assist with the whole strategy.

The costs in making an Unchallengeable Will often depend on your circumstances. However what we can say is that the costs of implementing the Unchallengeable Will are far less than the litigation costs involved if the Will is challenged. For example would you prefer to pay $3,000 (the fee depends on the strategy) to implement an Unchallengeable Will or have your Estate pay $30,000 – $50,000 in legal fees (starting fees) to have a drawn out, stressful process that has the effect of tearing your family apart?

The Fiction

Clients often come to our office seeking our advice telling of how we can protect their Estate from a challenge. Some of the more interesting ones are:

  1. If I leave a person $1 under my Will they can’t make a claim – FICTION
  2. If I create testamentary trusts under my Will my Will is unchallengeable – FICTION
  3. If I include a clause in my Will as to why I have left someone out my Will is unchallengeable – FICTION
  4. If I include a clause in my Will that a person’s share is invalid if they challenge – that this will protect my Estate – FICTION

The problem with each of the above options is that the assets are already in and form part of the Estate. As such they are governed by the Will and thus can be challenged.

The Facts

The key to any strategy to make a Will unchallengeable is to prevent the assets going into your Estate in the first place.

This requires specialist knowledge on the laws relating to Wills and challenges, taxation, superannuation, life insurance and business agreements. It also requires an evaluation of each of the strategies open to you to work out which strategy best suits your affairs. Danaher Legal has this knowledge and understanding to protect you.

The Process

If you want to make an Unchallengeable Will the first step is to make an appointment to see us at Danaher Legal. We would recommend that you go to our website and download our Questionnaire and complete it as best you can.

Essentially we need to know what you want to achieve with your Will. Then you leave it to Danaher Legal to work out a strategy that works for you and is within your budget. There are strategies that suit all budgets.

The Likely Cost

Costs of making an Unchallengeable Will depend on:

  1. Your circumstances – how you own your assets and who you are leaving out/ limiting their gift under your Will.
  2. How important the issue is in your estate planning – Essential or a peripheral factor.
  3. The size of your estate.
  4. The likelihood that a challenge would be made (and be successful) if you left a person out of your Will.

 

We charge our time out on an hourly basis. Our hourly rate is $375 plus GST.

Again we appreciate that these costs are expensive but if your Will is challenged the costs could be as much as 20 times higher than this. A carefully implemented strategy for an Unchallengeable Will will ultimately save you money and give you peace of mind that your Will is in order.

Call us now at Danaher Legal to make the Unchallengeable Will.

Contact us now at Danaher Legal for advice on Unchallengeable Wills