Why is it important to make a will?

Making a will is important for several reasons:

• Distributing your assets: A will ensures that your assets are distributed according to your wishes after you pass away. Without a will, the laws of your state or country will dictate how your assets are distributed, which may not align with your preferences.

• Protecting your family: If you have dependents, a will allows you to name a guardian for them in case you pass away. This ensures that your children will be taken care of by someone you trust and who shares your values.

• Minimising conflict: A clear and legally binding will can help prevent conflicts among family members over your estate after you pass away. Without a will, your loved ones may disagree about how your assets should be distributed, which can lead to costly and time-consuming legal battles.

• Minimise probate: A will can help simplify the probate process, which is the legal process of administering your estate after you pass away. A well-crafted will can reduce the amount of time and expense required to settle your estate.

• Peace of mind: Making a will can provide peace of mind that your wishes will be carried out after you pass away. It can also be a way to express your love and gratitude to the people you care about by leaving them a legacy that reflects your values and priorities.

Why would a court be reluctant to "disturb" a will?

A court would be reluctant to disturb a will because a will is a legally binding document that reflects the wishes of the person who made it. The law generally recognizes a person's right to dispose of their property as they see fit, and a will is the most common way to do so. Therefore, courts will generally uphold the validity of a will unless there is evidence of fraud, undue influence, coercion, mistake, or lack of capacity on the part of the person who made the will.

Additionally, courts understand that the process of making a will involves careful consideration and reflection by the person making it. They recognize that the will is a personal expression of the testator's wishes and intentions, and that it should be respected unless there is a valid reason to challenge it.

However, if a will is found to be invalid or if there is a dispute over its interpretation or execution, a court may intervene to resolve the issue and ensure that the testator's wishes are carried out to the extent possible.

 What factors will a court consider when “interfering” in a testators right to distribute their estate as they wish?

A court will consider several factors before interfering with a testator's right to distribute their estate as they desire. These factors may vary depending on the laws of the jurisdiction and the specific circumstances of the case, but generally in Victoria they include:

• Capacity: A court will consider whether the testator had the mental capacity to understand the consequences of making a will and to make decisions about how to distribute their estate.

• Undue influence: A court will consider whether the testator was coerced, manipulated, or unduly influenced by another person to make a will that did not reflect their true wishes.

• Fraud or mistake: A court will consider whether the testator was deceived or misled into making a will that did not reflect their true wishes, or whether there was a mistake in the drafting or execution of the will.

• Public policy: A court may consider whether the distribution of the estate as set out in the will would be contrary to public policy or the law.

• Evidence of the testator's intent: A court will consider any evidence of the testator's intent, including statements made by the testator or witnesses, as well as the circumstances surrounding the drafting and execution of the will.

In general, a court will be hesitant to interfere with a testator's right to distribute their estate may they desire unless there is clear evidence that the testator did not have the necessary capacity, was unduly influenced, or there was fraud or mistake involved.

What is meant by contrary to public policy or the law?

When a distribution of an estate under a will is considered "contrary to public policy or the law," it means that the distribution is in conflict with the principles or values that the law seeks to uphold.

For example, if a will contained a provision that required a beneficiary to engage in illegal activities in order to receive their inheritance, such as drug trafficking or money laundering, then the court would find that provision to be contrary to public policy or the law and would not enforce it.

Similarly, if a will contained a provision that violated a legal requirement, such as a provision that disinherited a spouse or child in contravention of the jurisdiction's laws on spousal or child support, then that provision may also be found to be contrary to public policy or the law. See also our blog post on Part IV claims for more details.

In general, the courts will seek to uphold the testator's wishes as expressed in the will, but will not do so if those wishes conflict with legal principles, values, or requirements. The court may modify the will or distribute the assets in a different way in order to ensure that the distribution is in accordance with the law and public policy.

Is being left no or little provision in a will deemed contrary to public policy or the law?

In some jurisdictions, inadequate provision in a will may be deemed contrary to public policy or the law if it is found to be unfair or unjust. For example, many jurisdictions have laws that protect the rights of spouses and children to inherit from the estate of a deceased person, and a will that disinherits a spouse or child may be considered contrary to the law.

In these cases, a court may intervene and order that adequate provision be made for the spouse or child, even if it means varying the terms of the will. The court will consider factors such as the financial needs of the spouse or child, the size and nature of the estate, and the testator's relationship with the spouse or child in determining what constitutes adequate provision.

However, the rules around inadequate provision vary widely depending on the jurisdiction and the specific circumstances of the case. It is always best to consult with a legal professional in your area to understand your rights and obligations with regard to making a will and ensuring that your assets are distributed fairly and in accordance with the law in your Country and State.

All information provided on the Sgro & Associates’ website does not, and is not intended to, constitute legal advice.

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