Contesting a Will in Australia is no easy task. When someone contests a Will, they believe they did not receive adequate provisions from the Will. By contrast, challenging a Will means they do not believe that the Will is valid.
Generally, beneficiaries or supposed beneficiaries can contest a Will with different and personal reasons for doing so. Financial need? Family issues? Uncertainty with the Will's terms? Whatever the reason is, they should know when to contest a Will and what the chances are to succeed with it.
It is always unfair to receive unfair provisions if you believe that you deserve more from a Will. Sometimes, this belief can be supported if you've had a genuine and good relationship with the Will-maker. So, do you want to know how to successfully contest a Will?
Fast Facts About Contesting a Will in
Australia
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Who Is Eligible For Contesting A Will In Australia?
Every state and territory in Australia has a law that permits some persons to contest a Will. Although the conditions for eligibility vary.
In certain states, a grandchild is immediately qualified to dispute a Will. Whilst in others, a grandchild can contest a Will only if they were previously financially dependent or partly dependent on the testator, i.e. the Will-maker. Contesting a Will in Australia involves demonstrating that you are a qualified individual.
The precise definition of an eligible person varies by jurisdiction. However, it often includes the deceased's spouse and any dependents they may have had. For example, the Family Provision Act 1982 in New South Wales (NSW) lists the following persons as being eligible:
Current Or Former Spouses
Some former partners or spouses will always contest a Will since they used to be the next of kin of a Will-maker. This includes anyone who was the deceased's spouse or wife, including those from divorced or annulled marriages. A de facto partner or a life partner who was lawfully married to the deceased is also an eligible individual.
A de facto partner is someone who has lived with the deceased for a lengthy period of time without separation. This period is generally at least two years. There is no official record of partnership status like there is in a marriage. For this reason, a de facto partner or life partner will often have to produce evidence of a genuine domestic living setup.
The Deceased's Children Or Grandchildren
This category includes biological children and grandchildren. Furthermore, it includes other family members such as stepchildren and domestic partners' children.
Any Other Dependents
A person who was fully or partially financially dependent on the deceased may be eligible in exceptional circumstances. Contesting a Will in Australia is possible even if you don't fit the eligibility standards. This is if you can establish that the deceased didn't keep the promise of giving you something in their Will.
A lawyer can help you figure out if your connection to the deceased qualifies you for benefits.
Contesting a Will in Australia: Factors You Should Know About
Are you one of the people who are eligible to contest a Will? Then you should know that you can make a family provision claim to the Supreme Court of NSW. This is a type of claim that allows a person to claim a larger share of the estate of a deceased person.
A common factor that the court considers is that you must be able to show the court that the deceased had a moral obligation to financially support you. Usually, the Will-maker has a moral obligation to support their spouse or children since they are next of kin. However, estranged people from the Will may have a harder time making a family provision application.
The following are the most essential considerations that a court may examine during a court hearing about contesting a Will in Australia:
- Your ability to demonstrate financial need.
- Your connection to the departed.
- Any duties you owe to the deceased.
- Your financial situation.
- Any physical, intellectual, or mental capacity or disabilities
Read: How To Stop Your Estranged Child From Challenging Your Will
What Makes a Will Contestable?
It's not enough to make a claim against a deceased's estate if you don't know to back up your claims. Some common reasons when contesting a Will in Australia include evidence of fraud, undue influence, or lack of testamentary capacity. Any Will-maker should be able to write their Will with a healthy mind that understands how it works.
Contesting A Will In Australia: Burke & Burke (2015)
Unfortunately, there are instances when family members have a falling out, which can even escalate further during a court process. This happens frequently between parents and adult children. This can generate significant problems when it is time for the parents to write their Wills.
There is a recent judgment from the NSW Court of Appeal. This ruled that there is no universal legal concept that provides for an estranged adult child in financial need. Despite the fact that the boy was in severe need of funds, the court refused to give him any. In an earlier judgement, the Court did provide for such a child, albeit only a small share of the inheritance.
The behaviour of the child towards the Will-maker must be carefully examined. There is no clear solution, but the Court's ruling suggests that an adult child can be excluded from a Will in suitable circumstances.
Minimising The Chances Of Someone Contesting A Will In Australia
There are fundamental techniques for reducing the risk of someone contesting a Will in Australia. One example is to make suitable provisions for anyone who would otherwise successfully contest. Beneficiaries don't need to receive an equal distribution. Instead, do what a reasonable testator would do in the same scenario.
It's also important to write down each beneficiary's needs. Do they need help with medical expenses because of a disability/disease? Are there children who will need help with school expenses? What if the deceased's spouse needs financial support? If a testator meets such needs, then this will lessen the chances of family provision order cases.
Another alternative is to ensure beneficiaries jointly own the property. When one of the joint owners passes away, ownership of the asset passes to the remaining owner. The deceased's inheritance doesn't include this. This method also applies to shared bank accounts.
To prevent such instances from happening, a person can use a testamentary trust. You would be surprised at how this trust can save you heaps of legal fees and disputes from other beneficiaries or other parties involved.
Are You in a Will Dispute?
In most cases, contesting a will means that you pay all legal costs and other associated fees out of pocket, even if your case is unsuccessful. So, it's best to speak with a lawyer about the legal expenses and court fees related to Wills and estate cases.
Contesting a Will in Australia needs proper legal advice. After all, family relationships and proper provision are at stake during Will contests. Our experienced lawyers at JB Solicitors can take proper approaches in contesting a Will and defending it during court proceedings.
Don't risk losing further provision without a lawyer. Contact JB Solicitors today and let's tackle your legal matter together.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
