In Australia, you have what's called "testamentary freedom" – the right to leave your estate to whoever you choose. However, this freedom isn't absolute. Under family provision laws in every Australian jurisdiction, certain people can challenge your will if they believe it's unfair to them.
The question many people ask is: How can I stop someone from contesting my will?
The short answer is you can't completely prevent someone from filing a claim. However, you can implement strategic estate planning measures that make contesting your will financially unattractive and significantly reduce the likelihood of a successful challenge.
Quick Answer
While Australian law gives eligible people (spouses, children, and dependents) the right to contest a will through family provision applications, you can use estate planning strategies to minimize assets in your estate, structure ownership arrangements, and create binding nominations that make will contests unattractive or unsuccessful.
Who Can Contest a Will in Australia?
Before we discuss protection strategies, it's important to understand who has the legal standing to contest your will:
- Current and former spouses (including de facto partners)
- Children (biological and adopted, regardless of age)
- Dependents (people who relied on you for financial support)
- People in a close personal relationship (in some states)
These people can make a family provision application if they believe you failed to adequately provide for them. The court will consider factors like financial need, the size of your estate, your relationship with the claimant, and any moral obligations you had toward them.
Strategy 1: Inter Vivos Transfer of Assets (Gifting While Alive)
One of the most direct ways to reduce the risk of a contested will is to transfer assets out of your estate before you die. This is known as an "inter vivos" transfer – Latin for "between the living."
How It Works
When you transfer ownership of assets to your intended beneficiaries during your lifetime, those assets don't form part of your estate when you die. If there's no estate, there's nothing for someone to contest.
For example, you might:
- Gift your investment property to your daughter
- Transfer shares to your son
- Add a family member as a joint owner on bank accounts
Critical Requirements
For an inter vivos transfer to be effective, it must be absolute and unconditional. You cannot:
- Maintain control over the asset
- Reserve the right to take it back
- Place conditions on how it's used
Once you gift an asset, it's truly gone from your control.
Risks and Costs to Consider
⚠️ Important Considerations
- Legal and professional fees: Transfers require proper documentation and professional assistance
- Stamp duty: In some states, transferring real estate without payment triggers stamp duty (the more valuable the property, the higher the cost)
- Capital gains tax: Gifting assets may create a CGT event with tax implications
- Centrelink impacts: Asset transfers can affect government benefits and aged care assessments
- Relationship breakdown: If relationships sour, you cannot reclaim the asset
- Longevity risk: You might outlive your financial resources if you give away too much
Beware: Notional Estate Laws in NSW
New South Wales has "notional estate" provisions designed to prevent people from deliberately defeating legitimate family provision claims. Under the NSW Succession Act, courts can:
- Set aside transfers made within 3 years before death (or 1 year in some cases)
- Include these "clawed back" assets in your estate for the purpose of family provision claims
- Apply these provisions even if you lived in another state, if you held NSW assets
📋 Case Example: NSW Notional Estate in Action
Bob lived his entire life in Brisbane, Queensland. He owned a house in Brisbane and a rental property in Tweed Heads, NSW. Bob had one daughter, Alex, who he hadn't seen in 20 years due to a family falling out.
A week before his death, Bob transferred both properties to his neighbour to prevent Alex from inheriting anything. He left a note explaining he disapproved of Alex's choice to support the North Queensland Cowboys over the Brisbane Broncos.
Result: Alex successfully used NSW's notional estate laws to include not just the NSW property but also the Queensland residence in the estate for her family provision claim. The transfer was set aside, and Alex received a share of both properties.
Lesson: Last-minute transfers to defeat family provision claims rarely work and may be overturned by the courts, especially in NSW.
Strategy 2: Strategic Ownership Arrangements
How you hold property with others can significantly impact what forms part of your estate when you die.
Joint Tenancy vs. Tenants in Common
When two or more people own property together in Australia, they typically hold it in one of two ways:
Tenants in Common
- Each owner holds a separate, identifiable share (equal or unequal)
- Each owner can deal with their share independently
- Your share passes according to your will
- Your share DOES form part of your estate
Joint Tenancy
- Owners are entitled equally to the whole property
- When one owner dies, their interest automatically passes to the surviving joint tenant(s)
- This is called "survivorship" or "right of survivorship"
- Your interest DOES NOT form part of your estate
Using Joint Tenancy as Protection
Because joint tenancy interests pass automatically to the surviving owner(s) outside your will, they're generally not available for family provision claims.
Example: If you own your family home as joint tenants with your spouse, when you die, your spouse automatically becomes the sole owner. Your children cannot make a family provision claim against that property because it never entered your estate.
Important Limitations
- You cannot gift a joint tenancy interest in your will (it passes automatically)
- Any joint tenant can "sever" the joint tenancy unilaterally by giving written notice, converting it to a tenancy in common
- Some states may still consider jointly owned property in certain circumstances
- Stamp duty and CGT implications may apply when changing ownership structures
✅ Action Item
Not sure how you hold your property? Order a title search for approximately $20-$50 to see whether you're tenants in common or joint tenants. This simple check can have significant estate planning implications.
Strategy 3: Keep Life Insurance Outside Your Estate
Life insurance proceeds are generally protected from being used to pay estate debts, and with proper planning, they can bypass your estate entirely.
The Key: Nominate a Specific Beneficiary
When setting up your life insurance policy, you should nominate a specific person as the beneficiary rather than nominating your "estate" or "legal personal representative."
Benefits of Direct Beneficiary Nomination:
- Proceeds go directly to the nominated person
- Funds don't form part of your estate
- Money is generally not available for family provision claims
- Faster payment (no waiting for probate/estate administration)
- Protection from estate creditors
Common Mistake to Avoid
Many people make their life insurance payable to their estate, thinking it will help cover funeral costs and debts. While this ensures funds are available for those purposes, it also:
- Makes the insurance proceeds vulnerable to family provision claims
- Delays payment until probate is granted
- Exposes the funds to potential estate creditors
Better approach: Nominate your intended beneficiary directly, and ensure they understand they may need to contribute to funeral costs if necessary.
Strategy 4: Restructure Asset Ownership with Trusts
Trusts are one of the most powerful estate planning tools for protecting assets from will contests, but they require careful setup and ongoing management.
How Trusts Work for Estate Protection
A trust is created when you (the "settlor") transfer ownership of an asset to a trustee, who holds it for the benefit of nominated beneficiaries according to the terms set out in a trust deed.
Once properly established:
- You no longer own the asset – the trustee does
- The asset doesn't form part of your estate when you die
- The trust deed dictates how benefits are distributed
Types of Trusts
Discretionary Trusts (Family Trusts)
- Trustee has discretion to choose which beneficiaries receive capital and income
- Provides flexibility for changing family circumstances
- Can offer tax planning advantages
- Assets cannot be claimed in a will contest
Testamentary Trusts
- Created by your will upon your death
- Assets go into trust rather than directly to beneficiaries
- Useful for protecting assets for young or vulnerable beneficiaries
- Can provide tax benefits and asset protection for beneficiaries
Critical Considerations
⚠️ Trust Warnings
- Loss of control: Once assets go into a trust, you cannot simply take them back
- Trustee selection: Choose your trustee carefully – they control the assets
- Ongoing obligations: Trusts require proper administration, record-keeping, and compliance
- Costs: Legal fees for setup, annual accounting, and tax return preparation
- Complexity: Trust law is technical – professional advice is essential
When Trusts Are Particularly Useful
- You have significant assets you want to protect
- You're concerned about beneficiaries' spending habits or vulnerability to financial pressure
- You want to provide for children from a previous relationship while protecting your current spouse
- You're in a second marriage and want to balance competing interests
- You operate a family business that needs continuity
Strategy 5: Keep Superannuation Outside Your Will with a Binding Death Benefit Nomination
For many Australians, superannuation is their largest asset, often worth more than their home. How you handle your super can make or break your estate planning strategy.
How Superannuation Death Benefits Work
Superannuation is NOT automatically part of your estate. Your super is held by the trustee of your superannuation fund for your benefit, and when you die, the trustee decides who receives it – unless you've made a valid Binding Death Benefit Nomination (BDBN).
Without a BDBN
If you don't have a binding nomination, the super fund trustee will:
- Contact your executor and potential beneficiaries
- Gather information about your dependants
- Invite claims from eligible people
- Decide who receives the benefit and in what proportions
- Potentially pay some or all to your estate (making it vulnerable to will contests)
This process can take many months and may result in outcomes you didn't want.
With a Binding Death Benefit Nomination
A valid BDBN removes the trustee's discretion – they must pay your super according to your instructions. This means:
- Your super goes where you want it to go
- Payment is typically faster
- The benefit stays outside your estate (if you nominate a person, not your estate)
- It's generally protected from family provision claims
Who Can You Nominate?
You can only make a BDBN in favor of your "SIS dependants" (superannuation dependants):
- Your spouse (including de facto)
- Your children (any age)
- Someone in an interdependency relationship with you
- Your legal personal representative (estate)
⏰ Critical BDBN Rules
- Expiry: Most BDBNs expire after 3 years and must be renewed
- Witnessing: Must be witnessed by two people who are not beneficiaries
- Fund-specific: Different super funds have different forms and requirements
- Not permanent: You can change your BDBN at any time while you're alive
- Review regularly: Life changes (marriage, divorce, children) may require updates
Non-Lapsing BDBNs
Some super funds offer "non-lapsing" binding nominations that don't expire every 3 years. These can be more convenient but may have other limitations. Check with your fund about what's available.
Additional Protective Measures
Make Your Will Contest-Resistant
While the strategies above focus on removing assets from your estate, you should also ensure your will itself is well-drafted and difficult to challenge:
- Use a qualified will solicitor rather than DIY will kits
- Include a statement of reasons explaining your decisions (though this isn't legally required and can sometimes backfire)
- Ensure proper witnessing and execution formalities
- Update regularly to reflect current circumstances
- Consider videoing the signing to demonstrate testamentary capacity
- Get medical evidence of capacity if you're elderly or unwell
Communicate Your Intentions
While it's not always comfortable, discussing your estate plans with family members can help prevent contests:
- Explain your reasoning (if appropriate)
- Manage expectations early
- Consider family meetings with a mediator
- Address potential issues before they become legal disputes
However, be cautious – if you're planning to disinherit someone, telling them in advance may give them time to contest your will while you're still alive or plan a challenge.
Combining Strategies for Maximum Protection
The most effective estate protection typically involves combining multiple strategies. For example:
Example Protection Plan
- Family home: Held as joint tenants with spouse (automatic survivorship)
- Investment property: Transferred into a discretionary family trust
- Superannuation: BDBN directing payment to adult children equally
- Life insurance: Direct beneficiary nomination to spouse
- Personal effects: Gifted during lifetime to intended recipients
- Remaining estate: Professionally drafted will with clear testamentary trust provisions
When to Seek Professional Advice
Estate planning is complex, and the strategies outlined above have significant legal, tax, and practical implications. You should seek professional advice if:
- Your estate is worth more than $500,000
- You have complex family relationships (blended families, estranged children, etc.)
- You own a business
- You have assets in multiple states or countries
- You're concerned about a specific person contesting your will
- You have dependents with special needs
- You're in a second marriage with children from a first marriage
Professional Team You May Need
- Estate planning lawyer: Overall strategy and legal documents
- Accountant: Tax implications and trust structures
- Financial planner: Superannuation and investment strategies
- Property lawyer: Title changes and property transfers
Frequently Asked Questions
While you can include such a clause, they're generally not enforceable in Australia. Family provision laws are considered protective legislation, and courts won't allow you to contract out of them. A beneficiary can still make a family provision claim even if your will includes a penalty for doing so.
In Queensland, eligible people must file a family provision application within 9 months of the date of death (though courts can extend this in some circumstances). Time limits vary by state, so check the rules for your jurisdiction.
If you successfully transfer all assets outside your estate and die with nothing in your name, there's technically nothing to contest. However, be aware of NSW's notional estate provisions (which can "claw back" recent transfers) and ensure you have enough to live on for the rest of your life. You should also consider who will pay your funeral costs.
Yes. In Australia, all children (regardless of age or relationship status) have the legal right to make a family provision claim. Estrangement doesn't automatically disqualify them, though it's a factor courts will consider. Courts look at moral obligation, financial need, and the size of the estate.
There's no universal answer. Lifetime gifting can reduce your estate but creates risks: you lose control, may trigger taxes, could outlive your money, and (in NSW) may be clawed back as notional estate. Professional advice considering your specific situation is essential before making large transfers.
You can leave your estate to charity, but eligible family members can still make a claim if they can demonstrate you had a moral obligation to provide for them. Courts will balance your testamentary freedom against legitimate claims from financially dependent family members. If you have no spouse, children, or dependents, leaving everything to charity is less likely to be successfully challenged.
Key Takeaways
Remember These Critical Points:
- You can't eliminate the right to contest – but you can make it unattractive or unsuccessful
- Start planning early – last-minute transfers are more vulnerable to being set aside
- Use multiple strategies – don't rely on just one protective measure
- Get professional advice – estate planning has complex legal and tax implications
- Review regularly – update your plan as circumstances change
- Document everything properly – informal arrangements rarely stand up in court
- Consider relationships – the most effective protection is often maintaining good family relationships
Conclusion
While Australian law protects the right of spouses, children, and dependents to contest a will through family provision applications, you're not powerless. Strategic estate planning can significantly reduce both the likelihood and potential success of will contests.
The five strategies outlined in this guide – inter vivos transfers, strategic ownership arrangements, life insurance planning, trust structures, and binding superannuation nominations – can work individually or in combination to protect your testamentary wishes.
However, each strategy has complex legal, tax, and practical implications. What works for one person may be inappropriate for another. The key is to start planning early, seek qualified professional advice, and review your plan regularly as your circumstances change.
Remember: the goal isn't to be vindictive or to deprive people of legitimate entitlements. It's to ensure that the people and causes you truly care about benefit from your life's work, while minimizing the risk of costly and emotionally damaging legal disputes after you're gone.
Need Help With Estate Planning?
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