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Adrian Corbould: Hello, welcome to the Battle of Wills series where I’ll be talking about contested estate matters, Wills and related issues. Today, I’ll be talking about claim proofing your Will. What I mean by claim proofing your Will is having a Will or an estate that cannot be claimed upon, any claim made is shut down. So what can you do to successfully have an estate or a Will that no one can claim upon?

Now what I’m going to talk about applies solely in New South Wales, doesn’t apply in any other state. So the only way that you can successfully leave someone out of your estate, or your Will, so they can’t claim is to own nothing for three years prior to your death. Basically, that means give away all your assets, transfer all your assets, do what you want with them but it has to be more than three years prior to your death such that you own nothing at the time that you die.

So what you’re probably saying to that is that does not sound like very good estate planning advice, how on earth can I live having no assets for three years prior to my death? Well, the reason for it is that the legislation has included limiting provisions to prevent people from doing just that, that if it can be proven that an asset was transferred or given away up to three years prior to your death and it can be shown that the intent for doing that was to limit having assets available for an eligible person to contest the Will, that transaction can be reversed, so it’s brought back into the estate.

I’ll give you an example of where this actually worked for a deceased person. I’ve been doing nothing but this type of work since 2005 and it’s the only time I have come across this. I had a fellow contact me, he said his mother had died, he was left out of her Will and he knew for a fact that she owned the house that she lived in. Now I asked him, “How do you know that for a fact?” He said, “Well, mum’s lived in there ever since I know and she was living there at the time of her death”.

I did a property search on that property and we discovered that his mother had transferred that property to his sister, her favoured daughter 10 years prior to her death. That meant that his sister owned the property and she was letting their mother live in the property. Now, as that transfer occurred more than three years prior to her death, that asset was not in existence or not accessible for him to make a family provision claim upon.

So I’m often asked, “Well, that sounds very unfair, why can’t I just leave someone out of my estate on my Will that I don’t want to leave anything to?” Well, you can. It is just that certain people called eligible persons, spouses, children and others have the right to make a family provision claim on an estate and they have to meet many criteria in order to convince a court to change your Will for them to have inclusion and if there’s serious issues such as long term estrangement, then the court takes that very seriously and they may actually dismiss that application.

So wrapping up, in New South Wales, it is very difficult to have a claim proof Will or a claim proof estate because the law is such that any transaction you have done in three years prior to your death, if it’s proven that it was done for the intent of limiting provision to an eligible person, that can be reversed. Any claim brought has to be assessed on its merits, so it’s not an automatic right that anyone who claims will succeed.

That’s all for today. I hope this has been of some value to you. Look forward to talking to you again next time. Thanks.

Turnbull Hill Lawyers, and specifically Adrian Corbould and Mary Windeyer, have been named in the prestigious 2022 Doyles Guide. Both were also listed in the 2021, 2020, 2019 and 2018 guides.

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