Can’t I leave my estate to whoever I want?

The answer is ‘yes, and no’. You have the right to make a Will leaving your assets to whoever you choose, and in the proportions you determine. However, in every State in Australia, there is legislation in place that gives certain people the right to bring an estate claim for further provision out of your estate after you pass away. These claims are called ‘Family Provision Applications’ and if successful, can seriously change your testamentary wishes.

Who can make a claim?

Depending on where you live and hold assets, eligible claimants may include:

  • Your spouse (married and certain de facto partners)
  • Your children
  • Your stepchildren
  • Certain categories of financial dependants

There are other reasons why your estate can be challenged, and they include disputes over the wording of a gift in your Will or a claim that you did not have the cognitive capacity to make the Will in the first place, so that an earlier Will applies. A carefully drafted Will goes a long way to minimising the risk of poor drafting in the Will. And if you have any cognitive deterioration, we have the legal procedures in place to minimise the risk of a later allegation that you did not have capacity to make your Will.

How can I avoid my estate being attacked?

We can assist you with a range of estate planning strategies to minimise the likelihood or impact of an estate claim being made against your estate. These include transferring assets, Inheritance Agreements, gift and loan back strategies, super binding nominations and more. We strongly recommend that you obtain advice from an experienced estate planning lawyer before putting in place any of these strategies.

Putting in place a strong strategy

An estate attack has the risk of seriously reducing the inheritance you leave to your intended beneficiaries as well as causing delay and disruption to the estate and lives of those affected. It is one of the main reasons causing the ‘L shaped Inheritance’® (namely, your inheritance not passing down your bloodline, but off to third parties that you did not intend to benefit).

Estate First Lawyers specialise in providing advice to minimise estate claims. At our first consultation, we will advise you of your options and help you structure the best solution for your situation so that you can have peace of mind. We will provide you with a written fixed fee quote at our meeting before we proceed with the work recommended. We can also assist with any other estate planning needs that you may have.

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    "If your financial and family situation is a little complex, which ours is, you need professional support, to set all your affairs in order. The repercussions of not doing this can lead to fractured family relationships and inheritance being misappropriated. Thanks to the professional work of Estate First Lawyers I am confident that our Wills and EPAs will ensure this will not happen."

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