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For most people, Estate Planning simply means making a will. Sometimes, that’s all there is to it - something simple and uncomplicated. But things aren’t always that way, people’s lives and family relationships can be very complicated. They’re complicated by what people want to achieve with their assets when they’ve passed away, especially when the ownership of those assets is already complex such as ownership through existing trust structures, in company holdings, and in co-ownership with other people.

There is also the complication of considering which people are going to be beneficiaries versus those people that might be expecting to be beneficiaries. The law in this area is relatively complex and sometimes people’s testamentary wishes are not guaranteed to be fulfilled in the way that they might think. That’s because wills can be challenged on various grounds, and can also be effectively bypassed completely or in part. These are two separate concepts.

What are the two main concepts of Estate Litigation?


  • The first of the concepts involves a challenge to the validity of the will itself, for example by establishing that the testator had a lack of capacity at the time they made the will. If this can be proved, the will is basically invalidated completely and either a previous will shall be considered or the rules of intestacy will apply in determining how and to who, the assets of the deceased shall pass.

  • The other concept is based on what is usually referred to as claims for “family provision”. This is where there may be no technical problem with the will at all, but also where there is no will in existence. It makes no difference. The idea is that some people may have a right to claim money from the estate to cater for their maintenance, education or advancement in life. Those potential claimants are within a class of persons accepted by the law to be people who are eligible.


What does that mean?


It means that even if you have a perfectly valid will, but that will makes inadequate provision for persons who satisfy the criteria of being “eligible” then those persons can potentially approach the court for an order for provision to be made for them from the assets of the estate, no matter what the will says.

As lawyers, it’s important to be able to understand those concepts not only in theory but in practical terms. The team at JSM Lawyers is almost continuously involved in matters in the Supreme Court involving every aspect of the challenges and claims referred to above. Not only is it important in order to be able to properly and expertly engage in the litigation matters themselves, but it’s important for the estate planning process at every level especially in the preparation of wills. As a matter of course we analyse our clients’ family and relationship situations as well as their initial ideas about their
testamentary wishes and provide advice as to potential claims that could be made on their estate if those wishes form the basis of their will.

The tools that are available for estate planning and succession planning generally are not limited to just the preparation of a valid will but also include the creation of legal structures and relationships such as trusts, which can be established in the will itself but also during the testator’s lifetime.

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