This is one of the most commonly asked questions we receive at SA Estate and Succession Lawyers says Ben Siegmann, Firm Principal of SA Estate and Succession Lawyers. The answer to what is the point of having a will if it can be challenged is complex and involves looking at the difference between Estate Planning and basic Will drafting as well as consideration of who can challenge a Will in South Australia and the law in relation to what assets of a deceased person form part of their estate and what do not – because the challenge to a Will is ultimately a challenge to the Estate so it is the assets inside the Estate that are dealt with by the Will that are impacted by the challenge. Many assets are not captured by a Will or can be made to sit outside the estate of a will maker to be kept safe from a will dispute.
Generally, every adult with any assets (even if very limited) should have a Will. It is important to also appreciate that if you don’t have a will at all, you sort of do have a Will – you just have the Will the Government dictates in Part3A of the Administration and Probate Act. That is probably not the Will you would want to have to begin with and it can still be challenged in the same way as if you had chosen the Government default position as your Will. So plainly, not having a Will because it can be challenged is not the answer. You start in an even worse position if you don’t have a will.
The key is to ensure your Will stands up to any challenge. That is where good Estate Planning comes in. Book a free 15-minute no obligation phone or video call with SA Estate and Succession Lawyers if you would like to explore challenging a Will or if you are involved in a current challenge to a Will.