Dealing with your estate as you wish is very important and in many situations may be affected by emotion. If a family member is omitted, for whatever reason, there is strong possibility that they may make a claim against the estate.

If this happens, Peter Fisher Lawyers can advise the executor of the estate or the omitted family member on how to deal with the claim.

When a family member is omitted from a Will or receives a less substantial bequest than expected, emotionally charged disputes can arise.

Minimising Disputes

Clients sometimes express concern that potential beneficiaries might assert that they should have received a greater share of an estate. In South Australia people who are permitted by law to challenge a Will include the spouse, defacto, children, grand-children, former spouses, or dependants of the deceased.

Challenges often arise where there has been a second marriage in the family or a breakdown in relationships between parents and children.

There are certain measures that can be utilized to lessen the chances of a dispute, but beneficiaries and would be beneficiaries may still opt to challenge the terms of the Will.

These measures include:

• Superannuation

  Use a binding nomination so that proceeds are paid to beneficiaries directly.

• Life Insurance

  Ensure that the nominated beneficiaries for life insurance are those you want to benefit.

• Trust Structures

  Assets owned by trusts are not subject to a Will. Transfer the control of the trust structure to the proposed beneficiaries

• Lists

  Leave a list of gifts already made to prospective claimants and detail why their inheritance is limited.

• Binding Financial Agreements

  A financial agreement continues to operate after death of a party, and may be binding on that party’s legal personal representative.

• Gifts made while still alive

  In South Australia, claims may only be made against the assets in your estate at the time of your death. If you have gifted your assets prior to death, then those assets are not treated as estate assets. The situation may be different in those states that use the concept of a notional estate.