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Failure to discuss plans could result in will contest

A number of people in NSW are risking their wills and estates being contested based on statistics from the Council on the Ageing NSW (COTA NSW) earlier this year.

According to its 50+ report that investigated the experiences and priorities of older citizens in NSW, close to two-thirds (64.2 per cent) of the 1804 respondents have discussed their end-of-life wishes with a trusted person.

Surprisingly, the statistics highlight that not all these discussions included a lawyer to get the wishes properly recorded as part of their will and estate. In fact, just 20.6 per cent had engaged this information with a lawyer.

Most people (63.6 per cent) had talked to their partners and carers about the circumstances of their assets and property on their death. Over half (58.3 per cent) also discussed the situation with their children.

It is interesting to note that even friends (34 per cent), other family members (23 per cent) and doctors (22.6 per cent) were ranked ahead of lawyers.

This is particularly concerning considering what is being discussed with friends and family is not being converted into the actual will. In this situation, if the person dies and has told a number of people what their wishes are, and then it isn’t reflected in the contents of the will, then there is a possibility that a contest will occur.

Last year, Health Minister Jillian Skinner explained in an advanced care planning report that it is important to discuss these topics with all the relevant parties. However, people should give special consideration to a lawyer – if you want it in writing.

“Each of them may have some part to play – each need to know what we want so that each of them can help provide it for us,” Ms Skinner said.

Who can contest a will?

If someone has discussed plans with friends and family and the will isn’t reflective, then it is important to understand who can contest a will.

Under the NSW Succession Act 2006, certain people can challenge the will before the 12 month deadline after death.

These people include:

  • A person married to the deceased at the time of their death
  • An individual who was living in a de facto relationship with the deceased when they passed (including same-sex partners)
  • Any children of the deceased person
  • Former wives or husbands (in certain circumstances only)
  • Any person who was at any time financially dependent on the deceased
  • A grandchild or any other individual who was a member of the household and dependent on the deceased
  • Any person who was living in a close personal relationship with the deceased at the time of their death
© 2021 
Contesting Wills
 — Gerard Malouf & Partners

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