Can You Take Action before You Die to Frustrate Somebody Who Wants to Contest Your Will?
Posted on: 2 February 2022
If you're in the process of making a will and are worried about what might happen when you pass, you may be thinking about some strategic planning now to make things a lot easier for the executor. For example, you may worry that someone will contest the will and receive more than you would like them to and wonder whether you can legally take steps to avoid this. What do you need to bear in mind in this tricky situation?
Controlling Your Assets
Generally speaking, you are free to leave your estate to whomever you would like, but certain people may be able to contest the will under what is called a "family provision" appeal. So, if you do not provide financial support for these people when you should, they may be able to contest the will and receive part of your estate that way.
Is Inter Vivos a Way Forward?
Are you adamant that they should not receive any of your estate even though they could legally be classified as a dependent? If so, you may transfer some assets to another party before you die, which is called an "inter vivos" movement. You may be able to give them all your assets now so that when you do die, there is no estate to consider, but you will need to be particularly careful before you go down this road.
With the Courts Object?
Some jurisdictions take a dim view to an inter vivos transfer if it has been performed specifically to block someone who might otherwise have had a claim. A court could determine that the other party was legally entitled to a share of the estate as it was and can actually reverse the transfer in certain circumstances.
Could You Set up a Trust?
You may be able to set up a discretionary trust by issuing a trust deed in favour of another party. Those individuals or organisations will then be in charge of the trust following your passing, but you will also need to understand the legal ramifications of this. The named trustee may not have any beneficial rights to the asset according to the terms and conditions and may have limited ability to change them.
Getting Further Advice
As you can see, this can be quite a complex situation, and you should proceed with care. Talk with a lawyer who has direct experience dealing with contested wills. They will be able to advise you what you should and should not consider.
For more information on disputed wills, contact a professional near you.
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