A will is a document written for a future reader: an executor, a beneficiary who feels hard done by, their lawyer, and possibly a judge. The best person to write it is someone who has been that reader.
I run cases myself as a solicitor advocate, and appear in court. I am a nationally accredited mediator and sit on mediation panels around Australia, including the Supreme Court of the Northern Territory and the Land Court of Queensland. I am also trained as a family law arbitrator. That means I see how documents are read when relationships have broken down, and that changes how I write them.
What dispute experience brings to planning
- Knowing which words get argued over. “Equally”, “my grandchildren”, “the family home” and “my business” all sound clear until someone has a reason to read them differently.
- Knowing what a court will ask. Was adequate provision made? Did the will-maker understand? Was there influence? Plans that anticipate those questions, with evidence on file, are harder to attack.
- Knowing how disputes actually settle. Most estate disputes end in mediation. A plan that leaves room for a sensible settlement, rather than an all-or-nothing fight, saves the family money.
- Knowing the cost. Families who have seen what litigation costs in money, time and relationships plan more carefully. I can tell them honestly.
- Building in a process. Mediation and arbitration clauses in family trusts, shareholder agreements and family constitutions give the family a path that does not start in court.
Advice, not just documents
Increasingly, drafting a document is the easy part, and software can do much of it. The value lies in judgement: what to include, what to leave out, how a family will react, and what will survive a challenge. That judgement comes from experience on the other side of the table.
Frequently asked questions
Why does dispute experience matter when drafting a will?
A will is read most closely when someone has a reason to challenge it. A lawyer who has run estate disputes and mediations knows which words get argued over, what a court will ask about provision, understanding and influence, and how disputes actually settle. That experience helps produce plans that are clearer and harder to attack.
What questions does a court ask in a will dispute?
Common questions include whether adequate provision was made for the people the will-maker had a responsibility to provide for, whether the will-maker understood the will, and whether anyone exercised influence over them. Plans that anticipate those questions, with supporting evidence kept on file, are harder to attack.
How do most estate disputes end?
Most estate disputes end in mediation rather than a court judgment. A plan that leaves room for a sensible settlement, rather than an all-or-nothing fight, usually saves the family money, time and relationships. Mediation and arbitration clauses in family trusts, shareholder agreements and family constitutions give the family a path that does not start in court.
Can software replace a lawyer when making a will?
Software can produce much of the text of a document, but the value of legal advice lies in judgement: what to include, what to leave out, how a family will react, and what will survive a challenge. For families with complex assets or relationships, that judgement matters more than the document itself.
Chua Tan Associates advises families, executors, trustees and their professional advisers on estate planning, estate administration and estate disputes, in Australia and across borders. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal advice. Victorian law unless stated otherwise.
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