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Jansen Walsh & Grace

Do you have a Will?  Is it still in accordance with your current wishes?
Your Will is one of the most important documents you will ever make.  If you do not have a Will or your Will no longer reflects your wishes because of changed circumstances or for any other reason, then the assets of your estate will not be distributed as you would want.

In preparing your Will, we will tailor it to meet your individual requirements. No two Wills are the same, just as no two people are the same. We will take your instructions, draft your Will and help you execute it correctly.  There are no hidden costs and we will be able to confirm what our fixed fee will be at the initial meeting.  If you are in a hospital, or incapacitated, or living in a retirement village, we can visit you.  If you find it difficult to climb the stairs to our office, we can come downstairs and take instructions from you.

"Can I put my horse in my Will?"
We can advise you on how to provide for your horse.  As we detail in our article published in Hoofbeats, we have several solutions, including a trust for your horse's welfare.

"Can I provide for my dog in my Will?"  "Can I provide for my cat in my Will?"
Yes.  Instead of having them put down, you can gift your dog or cat to someone or set up a trust for their care, comfort and welfare for as long as they live.

“Can I leave anyone out of my Will?  Can someone challenge my Will?  Can someone claim more?”
Yes, beneficiaries under the Will may make a claim for a larger share of the assets.  Also, others not mentioned in the Will can make a claim for a share of the assets.

The Court may order that there be a distribution of assets other than as set out in the Will if it is satisfied that you had a responsibility to provide for the maintenance and support of the person claiming further provision from the estate and you had failed to meet this responsibility.

In Victoria, the claimant must fall within the definition of an eligible person as set out in the Administration and Probate Act 1958.  Each of the following is an eligible person:

  • your spouse or domestic partner;
  • your child or adopted child or step child or someone who thought they were a child;
  • your former spouse or domestic partner who would have entitled to bring a family law claim but had not or was part way through proceedings;
  • a registered caring partner;
  • a grandchild in certain limited circumstances;
  • a spouse or domestic partner of a deceased child or adopted child or stepchild or someone who thought they were a child, if they died within one year of the deceased;
  • a person who is a member of your household (or had been and was likely to be again in the near future).

The claimant must show that you had an obligation or duty to make adequate provision for them and that this was not done.  There are many factors that the court will take into account when considering these types of applications.  In general, the courts will look carefully at situations where children or spouses of the deceased have been left out of the Will or been unfairly treated.  Consideration will be given to the financial circumstances of adult children when they make a claim.  In relation to an eligible person other than your spouse or children, the courts will look at whether there was a dependent relationship with you and what contribution they made to the building up of the estate or your welfare.  The courts will consider any written reasons given by you in your Will as to why the claimant was left out or left less than others.

It is a complicated area of law and each matter is judged on its own facts.  You should discuss the matter with us if you have any concerns or suspect that a claim may be brought on this basis after your death.

Anyone wishing to make an application is entitled to do so within 6 months of the date that probate was granted.  If they try to make an application after that time, special permission from the court is required.

"Can I stop anyone challenging my will?"  Bullet-proofing your wishes
If you are concerned about someone challenging your Will after your death, there are five ways to ensure that your wishes prevail.

“What happens if I do not make a Will?”
If you die without a Will, complex rules will govern how your estate will be distributed on your death.   If you do not make a Will, there may be three consequences.

First, this could mean the people you want to inherit do not benefit from your estate.  For example, your spouse or partner may not inherit the whole of your estate and may have to share your property and assets with others.

Secondly, if your spouse or partner wants to continue to reside in the home, they will usually have to pay land transfer duty to the State Revenue Office (formerly called stamp duty) to stay in the home.  This is not an uncommon occurrence where you have a child or children (whether adults or minors) and your spouse or partner is reluctant to make an application to the Supreme Court or the County Court under section 90A of the Administration and Probate Act.  This assumes your children will disclaim their entitlements to the house, ie, that they will gift their shares to your spouse or partner.

Finally, unless you have relatives who are first cousins or closer, all the assets of your estate — your hard-earned money — will go to the Crown in right of the State of Victoria.

“I just want a cheap Will.”  A cautionary tale
Latinka and her husband migrated from Serbia.   They also had two sons.  Stan was one of their sons.  They worked hard and saved.  They acquired two properties in Albion.  Stan and his domestic partner ended their relationship and separated.  As neither had much in the way of assets, Stan and his domestic partner did not make a binding financial agreement or seek financial orders.  After they separated, Latinka died.  Latinka had made a basic Will giving a property to each of her sons.  Stan inherited one of her Albion properties.  Stan made a Will.  The beneficiaries of his Will were his son and his brother.  Not surprisingly, his former domestic partner was not a beneficiary.  Stan died.  The principal asset of his estate was the Albion property he had inherited from his mother.  His domestic partner made a claim on his estate.  The trial judge awarded her 80% of Stan’s estate and her legal costs.   The executor’s lawyers argued on appeal that Stan had inherited the Albion property from his mother after the relationship had ended.  On 8 September 2020, the Court of Appeal dismissed the appeal.  This is not what Latinka had intended.  This could have been avoided if Latinka had made a special Will protecting the Albion property for Stan but insulating it from being claimed by Stan’s former domestic partner.

Keeping your Will up to date
You should review your Will every five years and after any major life change such as getting separated, married or divorced, having children or moving to a new house.  It is possible to make minor changes to your existing Will.

Free safe keeping of your Will
It is important that somebody knows where your Will is stored so that your wishes are not ignored.  We provide a free custodial service. You can store your Will  in our fire-proof facility, where it will be available when you need it — for free.

About us
We have 40 years' experience in drafting Wills for people in Melbourne's Outer Eastern Suburbs and the Yarra Ranges.