Disputes generated by contested wills and deceased estates are becoming commonplace, making it more important than ever to ensure a will is as robust as possible to ensure future wishes are met, according to Parke Lawyers.

Wills and estates disputes can create unnecessary friction among the family, can take up a lot of time and can severely drain the financial value of the estate, Parke Lawyers Managing Director Jim Parke says. Mr Parke says adding a testamentary trust to the will can provide a greater level of control over the distribution of assets to beneficiaries.

“A contested will risks ending up as a costly and time-consuming free-for-all with the end result being that the wishes recorded in the will are not met.

“Rather than the feuding parties’ lawyers earning fees from these disputes, it is much more prudent to seek professional legal advice when making your will,” Mr Parke says.

Some reports suggest that more than 50 per cent of wills contested in courts are contested by family members fighting over how their parents’ estate should be divided among siblings.

With the aging of the large baby boomer generation, born between 1946 and 1964, Mr Parke anticipates that the effects of outdated or ineffectively structured wills will become increasingly prominent in the coming years.

Ensuring safeguards are in place so that the money goes where it is intended is a big part of estate planning. This means financial structuring to protect the transfer of wealth from one generation to the next.

He says traditional will structures lack the flexibility to meet the ever-changing needs of the families of today. “The increasing prevalence of blended families is adding to the disputes as children of one, or both partners dispute a will.

“For families with significant assets, our recommended approach is to include full testamentary discretionary trust mechanisms in the will.

“A testamentary trust is a trust established under a will which brings a number of benefits including the protection of beneficiaries and a flexible approach to allocating capital and income from the estate.

“A testamentary discretionary trust is a special type of discretionary trust that is created pursuant to a person’s will. The trust takes effect after the will-maker passes away. Instead of passing the assets directly to the beneficiary, the executor puts the assets into a discretionary trust. The intended recipient becomes a beneficiary under the trust.”

Mr Parke says testamentary trusts can be tailored to meet the executor’s requirements.

“For example, under a discretionary trust, the timing and allocation of distributions can also be structured to ensure they are tax effective. If there are assets, such as property or businesses, there is increased flexibility in how these are dealt with to ensure their value is preserved. Well-designed testamentary trusts can also assist in protecting the interests of more vulnerable beneficiaries.

“Not all wills have to be complex or elaborate, says Mr Parke. “It is about ensuring your wishes will be respected and that your will keeps up with your changing circumstances throughout your lifetime”.

Jim Parke and Parke Lawyers were awarded a Leading listing in Doyles Guide Leading Wills, Estates & Succession Planning Lawyers Victoria 2017 for the categories of Wills & Estates and also Estates Litigation. Doyle’s Guide recognises Australia’s best lawyers and law firms.