Legal Advice

Facts About Estate Planning


If you have assets then you will need to plan for their distribution after you die. Having a consultation with a family lawyer will ensure that your estate planning is done correctly so it is legal and no one can step in to challenge or change it. You have a right to leave your assets to whomever you want, but the law says you have a duty to your family to support and maintain them, so they should not be left out.

That said, you can still leave gifts to charities and people who are not related by blood, at your discretion.

Step children cannot Contest a Will, but other family members may. If you leave out some family members but not others, those who are not included can challenge the Will. Even if people are included, they can still challenge the Will if they think they should have been left more. These are the people who can challenge your Will.

  • Your spouse
  • Your de-facto if you were maintaining them
  • Your ex-spouse if they were receiving maintenance payments or entitled to do so when you died.
  • Your child, grandchild or even an unborn child or grandchild. Naturally enough, the latter two will need to have someone challenge on their behalf

To do this they will have to go to the Supreme Court and show good reason why they think they are entitled to more and why what they have been left is not enough to provide for them.

If you are concerned that a family member or ex-spouse will challenge your Will and take everything, it is possible to add a ‘considered person’ clause to the Will to make your assets safer from them. There are also other ways in which you can set up your estate planning to protect your assets. For instance,  there are certain trust types that can be used for your assets to keep them out of your Will, while still allowing those you want to,  to benefit.

An executor of the estate is usually a person who can be trusted to administer the estate and see that your last wishes are carried out.  It is usually someone who is a beneficiary. You can have more than one executor.

Part of estate planning is to nominate a Power of Attorney.  This should be a person you can trust, who has business sense, to sign documents on your behalf if you are away and unable to do so.  Some people choose their spouse or de-facto. If there is no one you can trust to sign documents and pay bills on your behalf, you can nominate a lawyer, accountant or Public Trustee. No matter whom you choose, they are all under strict rules and regulations to ensure they do everything in your best interests.