When a will becomes a won’t

HerCanberra Team

It’s the stuff of Hollywood legends.

Someone dies, and their will becomes a hotly-contested document – igniting more claims to financial rights than the discovery of oil in the Antarctic.

But even in quiet suburban Canberra, the last will and testaments of ordinary citizens can sometimes cause enormous grief and infighting amongst the family members left behind.

“Contested wills and estate disputes can be enormously emotional, given they come after a loss. And we are finding they are increasingly becoming a bigger part of our workload,” says Maliganis Edwards Johnson partner Deborah Rolfe AM.

Deborah Rolfe, Partner at Maliganis Edwards Johnson.

With a career in the law spanning 30 years, Ms Rolfe said the rise of blended families and increasing cases of estrangement among family members often resulted in acrimony once the funeral had been held and the will read.

And from that point, many parties required legal advice in order to protect their rights.

“Some families do terrifically well, and there is no issue. But others can end up in quite high levels of acrimony and disharmony if some members feel they have been neglected from receiving a fair or proper entitlement.”

While the Hollywood cliché is of rich older men marrying younger women and signing over their fortunes at the expense of their first wives and grown children, the fact is that often first families feel their rights are not respected when a parent dies.

New families also want to claim what they feel is their rightful entitlement.

“We see this scenario a lot when first and second family members feel let down by the last wishes of someone.”

Ms Rolfe said every case was usually complex and different – but ultimately legislation gave courts guidance as to how to interpret someone’s final wishes.

“The court will always start from the position that if there is a valid will then they will work to fulfil the testator’s wishes and desires so far as they are expressed.”

But for many, death comes before they have written, or sometimes even considered, a will.

“Someone dying without a will is far more likely to create issues for their family than someone who does. So I would urge people to have a properly-drawn-up will which covers all contingencies and has the particular family structure properly explained. Hopefully, that will minimise any chance of a dispute later, at an already difficult time which carries heightened emotions and stresses.”

The event of someone dying intestate, however, always carried a higher likelihood that it would need a legal resolution.

“In this circumstance, I would always recommend someone get legal advice very early as there are strict limitation periods in terms of notifying a claim. So you need to know your rights quickly.”

But ultimately, Ms Rolfe said the best way to avoid any turmoil over what is left behind after someone dies is to actually have those conversations with family members.

“Yes these are certainly difficult conversations to have, but if someone has a clear idea about who they would like their property to go to after they have died, the best thing they can do is ensure that is clearly expressed in a professionally-prepared will.

“It could save a lot of turmoil for grieving family members once they are gone.”

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