A Research Study – “Having the last word: Will making and Contestation in Australia”

blog-willsI had the great pleasure of reading a very interesting report entitled “Having the last word: Will Making and Contestation in Australia”. 

For those that want to skip to the good bits, you can access the report here.

In summary, the study was conducted over 4 years and is the bouncing baby booklet of the Public Trustees and the University of Queensland under an Australian Research Council Linkage Grant.

The study collected answers to questions about who does and does not make a will and why.  It looks at the nature of the factors considered when making wills, deciding to make wills and challenges that people face in doing both. It also looks at what factors people take into account when deciding to distribute their estates in the manner they do. One particular part of the study that I found most interesting was a breakdown in the statistics when wills are contested and the correlation between making them and contesting them.

Here’s a few statistics that have been left lingering in my mind:

  • 46% of people who leave their children unequal shares do so because of a the behaivour of the child, a lack of relationship with the child, estrangement, addiction etc.
  • 58% of people making wills do so with a general solicitor
  • 15% of people making wills do so with a solicitor who specialises in wills
  • 11% of people making wills use a Will kit
  • 51% of will contest cases are family provision applications
  • 77% of family provision claim contests are successful (of the PT cases reviewed)
  • Recommendations to reducing contestation are also non-legal recommendations; i.e. engaging other professionals to try and address underlying family issues and dynamics e.g. mediation, counselling, communication with family, specialised financial advice.

Consider those for a moment…

The numbers above are concerning, particularly those in respect of the amount of people who leave unequal shares to their estranged children (albeit for what may seem justifiable reason) and then the subsequent number of family provision claims and the success rate of same.  Coincidence?

The study uncovered clients obtaining conflicting advice from will drafters, which then led to them not pursuing making a will or making a change to their prior will. One of the recommendations in respect of reducing contestation was also that lawyers who practice in this area need to know how to properly advise people with complex issues and understand the full range of strategies available to these situations.  However, according to the study, only 15% of testator’s use lawyers that specialise in wills and estate. .

With that thought in mind, there’s one sentence in the report that I personally feel would go a long way to addressing a lot of the issues uncovered in the report and it’s particularly apt to leave this post on that note:

“Will drafters identified as problematic the lack of community understanding of the importance of having an appropriate will, the time involved in drafting a will and the consequences of intestacy and family provision legislation.”

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