Blog

By Stephen Lucas, Principal Director at Kingston Lawyers Pty. Ltd.

In the conversations of polite Australian society we do not like to dwell too much on matters of death and Wills. “I’m going to die one day so who cares anyway”, is common statement made by some people.

However, dying is something we will all do and it is important to have a Will made by your chosen lawyers prior to your death. In Australia every State has their own laws pertaining to Wills and contests over Wills or Will disputes.

In Victoria, the State Government has proposed some new laws which will make it very difficult for people to contest the Wills of deceased relatives and friends. In fact Victoria is about to move from having one of the most liberal regimes in the country to one of the most restrictive in the country. What this means is that in future it is going to be extremely difficult to contest a Will.

For many of our clients, this will be a very popular legislative reform. Over the years we have defended claims made against the Wills of our clients by long gone former partners, second cousins, nieces and nephews and even house cleaners. These cases have been very stressful for our Executor clients, and sometimes costly for the estates involved.

The Court regards the Will as a sacred document. It is an extremely personal statement of what one wishes to happen to their assets when they die. Our society should require that these wishes are honoured. Our view is that the reforms are mostly positive. However, in its original form the new laws prohibited claims being made by the children of the deceased person unless the children were disabled or dependent upon the deceased at death. We are pleased that amendments have been made which will see this restriction modified to a degree.

The news laws will come into effect from 1 July 2015 or possibly earlier and will not be retrospective. Of some concern to us are issues of undue influence in the creation of Wills. By way of example elderly people being coerced by overbearing children to change their Wills. Also (newer) partners encouraging people to change their Wills when they are on their death beds to leave their children out. You can rest assured that in such cases we will be vigilant and protective of our clients and their families. The power to create a Will for someone is a privilege afforded to solicitors in this State and one which we continue to take very seriously.

One thing is certain however; under the new laws Wills will become almost incontestable in Court. As such, it is more important than ever to update your Will. Please contact us to do this. We provide free storage of your Will and other private documents and have now made more than 5,000 Wills for our clients. Making a careful Will is one of the kindest things people can do for their loved ones, and there are difficult complications if you are a person who dies without a valid Will.