How Could Notional Estate Provisions Affect Your Will?
It's a good idea for everyone to create a will so that following their demise, their estate can be distributed amongst their family, friends and other beneficiaries. Often, this act can be relatively straightforward and without any complexity, but sometimes, the will-maker may not want part of their estate to pass to a certain individual. Should they take steps to remove certain assets from the equation, so they are not available to this party, or could this lead to problems?
Adjusting Your Estate
In some parts of the country, a court may not be happy if, for this reason, you liquidate certain assets for less than their actual value. In this case, a potential beneficiary may put a case forward following your death to claim that they have not been accounted for in your will. Fingers could be pointed to suggest that you had mindfully tried to exclude them by liquidating such assets at less than their fair value.
Staking a Claim
For example, you may anticipate that this individual could stake a claim against your bank account to say they should have received a share of it in your estate. If you did not want them to receive this windfall for whatever reason, you might have given that portion of your bank account to another party prior to your death.
Reclaiming Notional Estate
In this situation, a court may view this as part of your "notional" estate. Certain laws cover the timing of this event and whether or not the asset in question can be considered. However, if the courts determine that the money is indeed part of your notional estate, they have the legal ability to recapture it from whoever you gifted it to.
This law can apply to various assets and even to superannuation. It is possible to nominate a recipient within a superannuation scheme, so that person will automatically accumulate the proceeds of the fund. However, if you do not make such a nomination and the plaintiff claims that you should have nominated them, the court may have the ability to make that alteration itself.
What to Do Next
As you can see, it's not easy to defeat family provisions by taking some pre-emptive action. It's best to discuss your estate with experts instead, so they can give you advice. They'll let you know how you should structure your will to avoid any challenges after your death, so get in touch with a lawyer specialising in this area.
For more information on wills, contact a professional near you.