Does Susie need to lodge her will with a solicitor? And can she ensure an estranged child cannot contest the will? She asks estate planning lawyer Rod Cunich for guidance.
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Q. Susie*
I have drafted my own and my husband’s wills and have had each witnessed and signed by two witnesses. I have the originals of the will at home in a filing cabinet and both sons have received email copies. In both our wills, all assets have been left to the surviving partner. My first question is, do I have to lodge these wills with a solicitor?
I also have a child who was adopted at birth and with whom I have not had contact with over the past 20 years. I have put a codicil in my will acknowledging that he, and any of his offspring, are not beneficiaries of my will and that this has been done intentionally. Is this indisputable?
A. There is no need to lodge the wills with a solicitor. You should ensure, however, that the executor knows where the originals can be located and that they are stored in a safe and secure location.
As for your adopted child, the legislation in each state and territory permits certain categories of persons to challenge a will if they believe that inadequate provision has been made for them in the will.
The legislation sets out extensive criteria that a court must consider when hearing a challenge. If a court is satisfied that the will failed to make adequate provision, orders can be made varying the will so that the claimant is adequately provided for. You can’t, therefore, negate an adopted child’s rights in this regard by expressly excluding them or otherwise.
* Not her real name.
Rod Cunich is a lawyer with more than 30 years’ experience in estate planning. If you have a question for Rod, email it to [email protected].
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