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Defend a Will Challenge: How transfers during life can stop someone successfully contesting a Will

It is a basic proposition that what you own in life, your property, becomes your “estate” after death.

Then if you have made a will, you leave your estate to your desired beneficiaries, or if no will, to be

divided between your next of kin. Simple, right?

What if you decide to give away all your possessions before you die to just one person?

Then when you die, the will would be read but there would be nothing in the estate because it has

all been transferred to another person by an “inter vivos” gift, which means “between the living”.

In most States this is a relatively simple way to defeat a claim for further provision (a Will contest) if

you think one is likely to happen after you die. After all, what can they do? The property is already

gone and the deceased person may not have owned it for some time before they died.

This happened to an oldest son who had no idea his father had given a half share in his house, worth

about $750,000, to his sister some 2 years before he died. The father and daughter then held the

property as joint tenants. The father and daughter then held the property as joint tenants. The son

suspected his sister had in some way forced her father to transfer the half share to her, because she

was caring for him at the time. However, the consideration for the transfer was “love and affection”

and there was no proof of any psychological pressure on the father other than his complaints to the

son that the sister was threatening to go overseas to work and leave him on his own if he did not

“look after her”.

The ownership of the property by way of a joint tenancy meant that when the father died, an

application to the titles office to transfer the whole of the property to the sister by right of

survivorship was all that was required for the sister to take full title.

As the father had left a will which left everything to the sister anyway, one can ask why was half the

property transferred in the father’s lifetime?

It is hard to avoid concluding that it was in order to defeat the son’s claim for further provision after

death by emptying the father’s estate during life.

In all States except NSW this mechanism will remove the property from the deceased’s estate.

Interestingly, the situation in New South Wales is different to other States as their Succession Act

2006 has provisions which will return “notional estate” in certain circumstances where inter vivos

transfers have occurred in the 4 years before death.

The Law Reform Commission in Victoria has considered, and rejected, the inclusion of similar

notional estate provisions in the corresponding Victorian legislation.

In the son’s situation, there was little that anyone could do, as the deceased did not live in New

South Wales.

Comments by Wills & Estate Specialist – Terry Johansson

It is always worth a phone call to a lawyer to get advice on your position- because every case is

different. CWPL has the expertise to carefully analyse the facts and apply the law in each jurisdiction,

whether in Australia or overseas.

Terry Johansson and the CWPL team is up to date on the latest cases in this area and will be able to

advise in detail on your particular circumstances.

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