NSW How to Ensure Brother does not Contest Will?

[Suzie Beel]

My brother and I were set to inherit the family home in NSW. My brother last month punched my dad several times in the face and the police charged him with assault and issued an AVO. My father and mother no longer wish to leave the home to my brother but now wish to leave it to me and cut him out of the will.

How do I ensure my brother does not contest the will if he has been left out as I feel this is what is likely happen?

 

[Rod]

How do I ensure my brother does not contest the will if he has been left out as I feel this is what is likely happen?

You can't stop him contesting if he wants to.

What you can do is re-write the will and be very clear in the will. A token amount should be left in there for the brother that assaulted your parents so that if the will is contested it is clear to a judge that the brother was considered and not left out.

 

[Sophea]

Hi Suzi,

Get your dad to rewrite his will or reference a letter in his will that is addressed to the court in circumstances where the will is challenged indicating why he is left out of the will and why no provision is being made for him - detailing the events that have occurred. That is your best bet at defeating any challenge. You can't actually prevent him from making an application to the court to contest the will though. Hopefully once his solicitors see the letter though they will advise him not to proceed.

 

[Sophea]

Just another thought...if your father is not that old, there is an option to make you a joint tenant with them in the house - so that if your father dies - you and your mother automatically inherit the house as joint tenants then when if your mother dies the house passes to you automatically without going through the estate.

However, if one of them dies within 3 years of you being added to the title, the house can still be considered as part of the estate that your brother can claim against - as the court looks at a "notional estate" which can take into account what the deceased owned within the last 3 years. This is to prevent people making pre-testamentary gifts to avoid family provision applications.