When lawyers talk of protecting an inheritance they do so from two different perspectives:
1. From the point of view of the will maker who wants to ensure that nominated beneficiaries receive what was intended,
2. From the point of view of persons who believe that they are, or should be, named as beneficiaries in a will.
Form the will maker’s point of view there are a number of areas where the potential concerns may well be the same as those of a beneficiary. Typically, the most important concerns are:
1. That the will makers children or heirs may either be at the time the will is made, or after the will maker dies, bankrupt. If, for example, a child is involved in a business which is not going well the will maker should rightly be concerned as to whether that child might ultimately have to go into bankruptcy. If this did occur and the child subsequently received an inheritance, the proceeds of that inheritance would then be distributed to the creditors of the child. Presumably the parent would be most unhappy at the prospect of the precious fruits of years of labour being distributed to a group of unknown people.
2. A similar dilemma occurs if a beneficiary gets divorced and part of the will maker’s estate is distributed to the departing spouse.
3. Another scenario is in cases where the intended beneficiary is in receipt of Government benefits and an inheritance might result in those benefits being lost or substantially reduced.
On the basis of the above examples, it is clear that the interests of the will maker and the intended beneficiary are the same in that the concern is to provide for the intended beneficiary in such a way that others cannot interfere with the distribution. The easiest way to ensure that these objectives can be met is for the will maker to engage in serious estate planning involving the use of trust structures which provide creditor asset protection for intended beneficiaries.
In Victoria if looking at protecting an inheritance from the perspective of a beneficiary who has either been left out of a will or not received as much as anticipated, a lawyer will want to investigate whether it is possible to challenge the will on any one of a number of grounds including what is known as Part IV of the Administration and Probate Act, whether undue influence existed, or even whether the will was properly executed.
In Victoria, anyone – not just immediate family members – can challenge a will and in some cases this might mean that the will is vulnerable to attack from a number of different directions. It is always of great assistance to lawyers when representing clients who had an expectation of an inheritance and who can demonstrate that reasonable grounds existed for holding this belief. This evidence might include:
(i) That they were not a stranger to the will maker. This might sound strange but it quite often occurs that people who had previously been close might drift apart and as a result, wills might change. Nevett Ford Lawyers has been involved in a case in which an elderly widow gave her estate to her neighbours who had been prepared to look after her in her failing years and left nothing to her direct relatives.
(ii) Ensure that you keep evidence of what that you believe would support your understanding of the relationship with the will maker. This will include photographs of time spent together, letters, emails and so on. If you have ever held a Power of Attorney or have been in some other position of significant trust, the documentation evidencing this should be retained.
Nevett Ford Lawyers has substantial experience in helping people protect inheritances. For more information, to book an appointment or to talk about your specific needs, contact us now.
