Section 95 of the Succession Act 2006 (NSW) offers a unique way to protect your wishes
When making a will, one of the greatest concerns is how to have your wishes set in stone. How can you make your last will an ironclad document that conveys your wishes – which limits the risk of a future challenge?
Disputes after a loved one dies are very stressful for all parties. There are many reasons to avoid estate challenges – the cost and emotional drain are two important factors.
But perhaps most concerning is the power the Court has to rewrite a will. Individuals can seek recourse from the Court in a claim for provision from someone’s estate. In a long line of cases, individuals have been successful in either settling the matter or the Court intervening to provide more benefit than the will originally stated.
This is a complex area of law that sits between succession and estate planning, family law and inheritance rights.
Here are some examples:
- An elderly couple want to specify in their will that their daughter should receive the bulk of their estate, and their son only a small portion. Their reason may be that they helped their son purchase a property earlier in life, so he effectively already received his inheritance. After the parents die, the son makes a claim against the estate for provision.
- A younger couple chooses to divorce. In settling their financial matters, both parties agree to completely sever their finances. Years later, the husband dies and the wife makes a claim for provision against his estate.
Unique to NSW, a testator can protect their will from future claims for provision by seeking a release of the person’s rights. This is done by making an application to the Court to obtain an order under s95 of the Succession Act 2006 (NSW).
This order can be done at any time – either during the testator’s lifetime (referred to as inter vivos), or after their death.
This is one solution that helps provide greater protection to the family to ensure the testator’s wishes are not challenged.
So, in the examples above, an order could be sought where the son releases his right to bring a claim in the future. By releasing her right at the time of divorce, the wife would be unable to access any benefit from the estate.
While there is a detailed process involved for these applications to be made successfully, it is one way to secure your will and set it in stone so that your wishes are followed.
Our specialist approach in all succession planning includes taking a holistic yet pragmatic approach to your individual situation and needs. We firmly believe a well-considered plan starts by looking at the result you want first. So we’ll work with you to assess the risks to your estate, and how to best manage them.
Get in touch today to discuss your estate planning needs.