Review of Public Trustee Files - Families and Generational Asset Transfers: Making and Challenging Wills in Contemporary Australia
16 Pages Posted: 26 Jul 2016
Date Written: March 19, 2014
The Public Trustee file review was designed to address research questions relating to will disputes and socio-cultural and family norms, expectations and obligations that underpin challenges to wills. Findings from this review will augment the earlier review of all adjudicated succession law cases in Australia between January and December 2011.
The research team obtained 139 cases for the review. Within the reviewed cases, parties generally needed some kind of formalised assistance to resolve disputes and almost a third ended up going to court. Most claims launched to contest wills were successful i.e. led to a change in distribution. The existence of poor and/or complex personal relationships between beneficiaries, disputants and/or the deceased were a feature of most cases involving will disputes, particularly where disputes were escalated to court.
There are significant costs of will contestation both for the estate and the individuals involved in disputes. Previous research has identified that in addition to the direct costs is the indirect cost of extending the time for probate of the will. This review highlights that one of the most significant costs of will contestation is the damage to familial relationships that appears to both drive and be worsened by contestation.
Findings of this review highlight the role of Public Trustees in providing financial management and advocacy services to protect and support vulnerable people in the community such as those with impaired capacity, as well as offering services such as will drafting and deceased estate administration.
Keywords: Will making, Will contestation, Succession law, Estate planning, Family provision
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