Each state and territory in Australia has its own laws that deal with challenges to a Last Will and Testament. However, the circumstances for contesting a will are generally similar Australia-wide. The laws in each state and territory allow a claimant to challenge the deceased estate by contesting the will, which means you are formally disputing its terms in court.
But it’s important to understand that to do this, you must be classed by the court as an ‘eligible person’ with sufficient grounds to claim within the relevant time limit. As a claimant, you must prove that the testator (the will-maker) had a moral and legal duty to provide for you and that you have a genuine financial need for that support. Simply feeling that the will is “unfair” is not enough to launch a successful challenge.
The 2 Main Grounds For Contesting a Will
There are two primary legal avenues for contesting a will in Australia. The first is to challenge the validity of the will itself, and the second is to make a Family Provision Claim because you were left with inadequate provision.
1. Challenging the Will’s Validity
Grounds for contesting a will under invalidity means the will is not legally valid and does not reflect the true intentions of the testator. This can happen for several key reasons, such as:
- Lack of Testamentary Capacity: The deceased was not of sound mind, memory, or understanding at the time they signed the will. For example, they may have been suffering from a condition like dementia.
- Undue Influence or Coercion: The testator was pressured, threatened, or coerced into making or changing the will against their own wishes.
- Fraud or Forgery: The will is a fraudulent document, the signature was forged, or the testator was deceived about the nature of the document they were signing.
- Improper Execution: The will was not correctly signed and witnessed in accordance with the strict legal requirements outlined in legislation like the Succession Act 2006.
2. Inadequate Provision (Making a Family Provision Claim)
Inadequate provision means the will does not adequately provide for an eligible person who has the right to make a “family provision claim”. This type of challenge does not argue the will is invalid, but rather that its distribution is unjust given the claimant’s circumstances.
If you are an eligible family member and the will-maker has left you out of their will or not made adequate provision to cover your proper maintenance, education, and advancement in life from the estate, you may be able to make a Family Provision Claim.
Who Can Contest a Will and Why?
A person may have grounds for contesting a will if a will-maker made inadequate provision for them or excluded them from the will unjustly. To contest a will, you must take it to the Supreme Court. In states like NSW, these applications must be made within 12 months of the death of the will-maker, so it is crucial to act promptly. If the court finds sufficient grounds for your claim, it has the power to redistribute the estate to make proper provision for you.
If you are considering contesting a will, you need to determine whether you have sufficient grounds by seeking legal advice from your lawyer or the Wills & Estate Disputes Helpline to discover the following:
Who is Eligible to Make a Family Provision Claim?
Under Section 57 of the Succession Act, only an ‘eligible person’ can make a Family Provision Claim. While the definition varies slightly between states, those deemed eligible persons who can make a family provision claim in the Supreme Court are typically:
- The spouse or de facto partner of the deceased.
- A child of the deceased (including adopted children).
- A former spouse of the deceased.
- A person who was, at any particular time, wholly or partly dependent on the deceased.
- A grandchild who was a member of the deceased’s household.
- A person who was living in a close personal relationship with the deceased at the time of their death.
The Reasons the Court May Consider a Claim
Family Provision Claims will vary, but when deciding whether to order further provision from the estate, the Court will generally consider detailed evidence about the eligible person’s circumstances. Key factors include:
- The financial position, age, and health of the applicant.
- The nature and length of the relationship between the applicant and the deceased.
- The size and nature of the deceased’s estate.
- The financial needs of other beneficiaries named in the will.
- Any contributions made by the applicant to the deceased’s estate or welfare.
- Evidence of the deceased’s intentions and moral duty to provide for the applicant.
Contact the NSW Wills & Estates Helpline
The contents in this article are general and should not be wholly relied upon for you or your family members to decide on contesting a will. The laws surrounding will disputes are complex, and strict time limits apply. Call us at the NSW Wills & Estate Disputes Helpline today for more information about your circumstances and grounds for contesting a will or applying for a family provision order.
Call us if you wish to draw up a will with an experienced Succession Act lawyer who will ensure your intentions are clear. Our lawyers are seasoned experts, so don’t hesitate to contact us at 1300 679 222, email willscontesting@gmail.com, or fill in the online enquiry form here, and we’ll get back to you immediately.
