I’ve heard that you can incorporate a “no contest” clause into a Will. Is this true? And what a ‘no contest’ clause is a clause in a Will stopping beneficiaries or others from making a family provision claim on the Estate.
It is possible to incorporate a ‘no contest’ clause into a Will. However, there are certain steps that need to be taken for the clause to be binding. Under the Succession Act of New South Wales (“the Act”) a person can release their right to make a family provision claim in certain circumstances. Some of the important things to know about a release of rights to make a family provision claim include:
(a) The release of their rights to make a family provision claim will only be binding if it has been approved by the Court.
(b) An application can be made to the Court for approval of a release of family provision rights before or after the death of the person whose Estate is subject to the order.
(c) When determining an application for approval of a release the Court will take into account the following:
- Whether the release was to the advantage, financially or otherwise, of the person making the release;
- Whether it was prudent, at the time, for the person to make the release;
- Whether the provisions of any agreement to make the release were fair and reasonable at the time; and
- Whether the person making the release had received independent legal advice in relation to the release and whether they gave due consideration to that advice.
It is also important to be aware that the Court has the power to revoke an approval of a release of the right to make a family provision claim if:
(a) The Court approval was obtained by fraud; or
(b) The release was obtained by fraud or undue influence; or
(c) If the Court is satisfied that all persons who would be affected by the revocation of the release consent to the revocation.
If you wish to include a ‘no contest’ clause in your Will you need to seek expert legal advice from a Wills and Estates lawyer. They will be able to advise you on the effectiveness of a no contest clause for your family circumstances and provide further advice on any alternative methods that may be used to minimise the risk of a family provision claim on your Estate. By seeking expert legal advice as soon as possible on the airtight drafting of your Will you can ensure that your final wishes as set out in your Will are carried out after you are gone.
Graeme Heckenberg is an expert Wills and Estate lawyer. If you are living on the Northern Beaches and surrounding Peninsula and need help and advice in a Will dispute or Estate matter, call Northern Beaches Lawyer today for an appointment close to home on 9221 0341- City Experience By the Beach.