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How do contesting will rights vary by territory?

First, let’s cover the basics. What does it mean to contest a will, exactly – and why would you need to do it? The reasoning is typically similar across all states and territories. Essentially, you’re challenging the will because it is believed to be invalid for the following reasons:
  • The will is believed to have been tampered with, or isn’t legally binding.
  • The deceased did not have the ability to make the will.
  • You believe that, considering your relationship with the deceased and other factors, you have not been adequately provided for.
  • The will appears uncharacteristic of the deceased and there is a concern of fraud.

Australian Capital Territory

When it comes to contesting a will, the time you have to do it varies between the various states and territories. In the ACT, legislation says that you have 6 months to act. If you wait longer, you’ll need to prove to the court that you have sufficient cause. A Family Provision claim, which refers to contesting a will, can only be made in the ACT if:
  • There is real estate property owned by the deceased in the ACT.
  • The deceased lived permanently in the ACT at the date of their death (and owned personal property elsewhere).
If you are the deceased’s partner, someone in a domestic relationship with the deceased, the deceased’s child, a stepchild under supervision of the decedent or that individual’s parent (if the deceased is not survived by a partner or children), you are eligible to contest the will.

Northern Territory

In the Northern Territory, you have a little bit longer to contest a will compared to the ACT. You’re given 12 months to make the claim – as long as you’re an eligible applicant, according to the territory’s legislation. This is relatively the same as the requirements in the ACT. As long as the deceased lived and/or owned assets in NT at the date of their death, then a claim can be made in NT. The NT is a little less precise regarding who is eligible to contest a will. If you’re a spouse, ex-spouse, child, step-child, grandchild, or parent of the deceased, you can make a claim – unlike in the ACT, which has some more specific mandates for stepchildren, parents and doesn’t mention ex-spouses. If you’re looking to contest a will, being aware of the specifics for your state or territory is the best first step. Professionals can guide you through this process. Contact us today! 
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Contesting Wills
 — Gerard Malouf & Partners

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