Is my Will the last word?

In Australia, people have the right to make a Will and to leave their assets as they wish. This is referred to as having “testamentary freedom”). However, a person’s Will is not necessarily the last word. There may be many reasons why the assets will not be distributed as the person has set out in their Will, some of which are as set out below.

Binding Agreement

If the person has entered into a binding agreement to give that asset to someone else, then their estate may be bound by that agreement, despite the terms of the Will or, if the asset must pass in accordance with the Will, the party who was entitled to it pursuant to the terms of the agreement, may be entitled to damages or compensation for breach of the agreement.  

Family Law Property Agreement or order

If an asset has been specifically dealt with in a property agreement or order but the terms have yet to be fully implemented, the estate of the deceased party will usually be bound by those terms.

Laws of another country

Some countries have laws that dictate how assets are to pass, despite the terms of any Will that has been made.

Assets owned as ‘Joint Tenants’

Where an asset is owned by two or more people as joint tenants, upon the death of the remaining joint tenant, the surviving joint tenant/s own the asset and that asset cannot be distributed in accordance with the Will.

Claims against the estate

If someone has the right to challenge the Will, and that challenge is successful, then the assets may pass in accordance with the terms of an earlier Will, or as the Court orders, rather than pursuant to the terms of the last Will made by the person.

Liability limited by a scheme approved under Professional Standards Legislation

Disclaimer: This post contains information of a general nature only and is not intended to be used as advice in relation to a specific matter. Although every care has been taken in preparing the document, it may not be accurate or complete, particularly in the context of specific circumstances. MJM Lawyers disclaims responsibility for any errors or omissions.