What should you consider when writing your Will?
Generally, a person is free to do whatever they like with their money while they are alive. The same applies in a will when they die but with an important exception. The law says when someone dies, they have a moral duty to look after certain people in their will: their partner (husband/wife/de facto/civil union), children (including stepchildren) and grandchildren, and sometimes their parents.
That does not mean that everything must be divided equally or fairly, or just given to those people. A person is allowed to divide their money and possessions unequally, for example by giving one child more than another, making what others might think is an unfair will, or giving most or all of their money to a charity. But if one of those particular people is cut out of a will and left nothing, or not properly provided for, then there are potentially grounds to challenge that will and claim against the estate.
The court has the power to change the will to remedy that breach of moral duty and make proper provision for that person.
There are many things that a court will consider when assessing a claim against a will including the size of the estate, the income and wealth of the claimant, the financial circumstances of other claimants, any other competing claims against the will, any gifts or assistance provided during the lifetime, and the dynamics and relationship between the person and the claimant as well as the rest of the family. The conduct of the claimant can also disentitle them in some situations. Just as every family has different dynamics, so too is every potential situation involving a claim against a will, so it is hard to list all the relevant factors.
There is a time limit for making a claim of 12 months from when the will begins to be actioned (grant of probate or letters of administration).
The implications of the law are two-fold. Firstly, if you are making a will, you should consider how your wishes might be viewed after your death and whether your will might be open to challenge. There may be steps you can take to reduce the risks of a court changing your will. Secondly, if you have been left out of a will or been treated unfairly, you may be able to challenge the will. The circumstances vary greatly so in either case, you should get some professional advice about your rights.