By Ashlee Chats*
After nearly 15 years in the legal industry, I’ve lost track of how many matters I’ve worked on involving family disputes over estates. Some are minor disagreements, others escalate into full-blown court battles.
However, no story will ever surpass the story of Nick, Nick Jr and Nicole. Nick came in with his two children, Nick Jr and Nicole, to update his Will. I advised Nick that it was best practice for me to obtain his instructions without his children present, so that we could avoid any potential claims of duress or undue influence in the future if his Will was contested. Nick assured me that would never happen to his family.
I agreed and so I proceeded as usual with taking a detailed list of all of Nick’s assets and liabilities. When I asked Nick how he wanted to divide his assets, he confirmed that he wanted to leave his entire estate to Nick Jr, and nothing to Nicole. After all, he explained, Nicole had a husband who could look after her. Whereas, Nick Jr was unmarried and was carrying on the family name – he deserved to inherit the Estate.
You could forgive me for thinking that given his insistence that both children remain in the consultation, that Nick had previously made his intentions known to Nick Jr and Nicole. However, he had not. The resulting fallout was a hysterical Nicole being asked to leave the room, being consoled by her brother who promised that he would never cut her out of what was rightfully hers.
Nick Sr eventually passed away and I was soon contacted by Nick Jr’s solicitor, who confirmed Nicole was challenging the Will. Tragically, what Nick Sr insisted would never happen to his family, did.
Unfortunately, Nick Sr’s story is far from unique. We are in the midst of one of the largest wealth transfers in history. However, the life’s work of our parents and grandparents who came to Australia and worked tirelessly to provide a better future, is being eroded by legal fees due to disputes over their estates. To be clear, there is no way to completely prevent a Will from being contested if someone has a legal right to challenge it.
However, there are some ways to mitigate the risk of your Will being contested and keeping your wealth in the family rather than in the Courts.
No. 1 | See a Lawyer and Prepare a Will
Whilst tools like Google and ChatGPT have given us access to more information than ever before, nothing can replace personalised legal advice tailored to your specific circumstances.
Shockingly, over 60% of the population does not yet have a Will. Consulting a solicitor and clearly outlining how you want your estate handled ensures you receive advice that fits your unique situation and, more importantly, formalises your wishes. Will kits are never properly executed, never take into account your personal circumstances and are usually a one-way ticket to the Supreme Court.
No. 2 | Understand if you have an obligation to provide for someone.
The Wills Act provides that spouses and children can contest a Will if they have not been adequately provided for. For example, Nick Jr and Nicole had an expectation to inherit equally.
However, if you have a dependant, for example a grandchild that lives with and depends on you, you may have an obligation to provide for them as well.
If you don’t want to provide for a child or another eligible person for whatever reason, you can have your solicitor prepare a statutory declaration that can be stored with your Will, outlining your reasons for the way you’ve divided your estate. This is how we ensured Nick Sr’s wishes were documented in the event his estate was contested – which it eventually was.
Most importantly, leaving the child you don’t speak to $10,000 does not negate their ability to contest your Will, despite what the ladies at Church might say.
No. 3 | Get tax advice
Partnering with a solicitor and financial planner helps you protect and grow your wealth for future generations, potentially through family trusts or other tailored investment structures suited to your needs.
No. 4 | Don’t do what Nick did – Speak with your family
Don’t do what Nick did—have those conversations with your children and family about your wishes while you can. Time and again, I’ve seen silence become the seed of conflict. Families don’t fall apart because a Will is poorly drafted, rather because no one ever spoke openly about what it contained or why certain decisions were made. In the absence of that dialogue, people begin to speculate, suspicions grow, and before long a simple estate matter turns into a contested Will. By taking the time to share your wishes and explain them, you are not only reducing the risk of costly litigation but also giving your family the comfort of clarity. Open communication now can spare them uncertainty later, and more importantly, preserve the relationships that matter most once you’re no longer here to guide them.
Families aren’t one-size-fits-all — and neither are the Wills that protect them. Expert advice is essential if you want to keep your wealth in your family and out of the courtroom.
* The information provided in this article is of a general nature only and does not constitute legal advice. Individual circumstances vary, and you should seek personalised advice from a qualified solicitor before making any decisions regarding your Will or estate planning. All names used have been changed to protect client confidentiality and legal professional privilege*
*Ashlee Chats, Director and Principal Lawyer at Wilckens Roche Lawyers, helps clients in Melbourne’s west navigate complex legal matters with clarity and confidence. Book an appointment on 03 8383 5999.
