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What grounds do you have to contest a will?

When a loved one has passed away, along with grieving the loss, family members and those close to the deceased must also go through a lot of logistical procedures regarding the deceased’s will.

The laws vary from state to state in Australia but generally, you have similar grounds to dispute wills across the country. This article will highlight the differences between states and territories, the ground on which you can contest a will and how to prepare.

Who can contest a will?

Also known as a family provision claim, contesting a will can involve making a claim for adequate provision for being left out of a portion of an estate or for adequate financial support if completely left of a will or you believe you’ve received inadequate amounts.

Who can contest a will have changed to include more people, especially in New South Wales (NSW). In NSW, the Succession Act of 2006 has included not only spouses and children but also:

  • Friends.
  • Relatives.
  • Former spouses.
  • De-facto partners.
  • Same-sex partners.
  • Wholly or partial dependents.

In Victoria laws surrounding eligible people include everyone in NSW as well as:

  • Anyone named in an earlier will.
  • Anyone who would have been entitled to benefit if the deceased person had no will.
  • A creditor.

In the Australian Capital Territory (ACT) anyone can challenge a will if they have an interest in the estate of the person who has died. This interested party, however, must have been a beneficiary or entitled to a share of the estate under the Administration and Probate Act 1929.

In the ACT, unless the will specifies who should inherit what, the direct spouse will take the estate. If there are no children, the estate will be handed over to the other family members in order of succession: grandchildren, parents, brothers and sisters, grandparents and uncles and aunts. If there are no living family members, the estate will be handed over to the ACT government.

Across the country, all dependents — including adopted children — are entitled to file a claim.

Legal grounds for contesting a will also vary by state. However, across all states, if the testamentary capacity of the will is called into question or a beneficiary has inadequate estate, they can file for a family provision claim.

Legal reasons why you may dispute wills

There are many reasons you may contest a will if you’re eligible to do so. While the rules are different in each state, there are similarities.

A will is not a legally binding document and those eligible to dispute it can do so generally if they feel the document has been tampered with. This could mean changes to the will were made after the person passed away, where proper provisions were not made for loved ones. Another common reason for filing for a disputed will is if the will was created more recently and the deceased was showing signs of mental issues or uncharacteristic provisions were made. Beneficiaries may believe the person was coerced to exclude them.

The will may not have gone through the proper steps as well. It must be overseen by a witness, drafted and signed according to the law.

These are the main reasons why someone may contest a will: the deceased did not have the capacity to write the document or you believe the will was made fraudulently by use of undue influence over the testator.

Challenging a will with evidence

As you determine your eligibility to contest a will, you should reach out to an estates lawyer to help you gather evidence to support your dispute resolution. The solicitor will know the local laws in which you are filing and help you weigh your options. Gerard Malouf & Partners do not charge for your consultation and can support you throughout the process.

One of the most important pieces of evidence you will likely be asked to provide during court proceedings is your financial capabilities, the size of the estate and its nature to prove the will-maker had the responsibility of care for you.

You may contest that the will is not valid due to the physical, mental or intellectual state of the deceased at the time it was written. To which you will need to prove this with medical records and doctor’s recommendations.

If the will-maker told you they would leave a certain part of their estate to you but you did not receive this in the will itself, it could be helpful to include any written statements outlining this promise. This is especially helpful if the will was rewritten soon before the will-maker passed away. A written agreement between a beneficiary and the will-maker could prove that the changes were made under coercion.

What laws support contested a will?

There are two laws supporting a contested will: The Family Provision Act and the Succession Act. While the Succession Act deals primarily with who can contest it, the Family Provision Act outlines how to go about the dispute itself and allows wills to be contested at all.

Proceedings for disputing a will

You may challenge a will if you are of the eligible party. First, you must determine whether or not the will has reached probate yet. Probate happens once a will has been deemed legal and has been assigned to an executor or a personal representative who will distribute the estate laid out in the will. This can be done by reaching out to the Supreme Court in the state you live in to make an inquiry.

You may contest a will after probate has been granted as well. Probate happens once a will has been deemed legal and has been assigned to an executor or a personal representative who will distribute the estate laid out in the will.

Here are some differences between states in regards to probate:

  • In Queensland, the court does not need to approve the will before a claim can be made.
  • In NSW and Victoria, a will can be disputed before probate but the courts will not move forward with proceedings until the will has gone through probate.

If you wish to contest a will before probate, you can request a probate caveat which means that the Court will not grant probate until all parties agree to remove it or the order is made by the court. If the parties cannot reach an agreement, the court will begin proceedings, and a judge will determine the outcome.

To contest the will, you must notify the executor of the will (usually done by your dispute lawyer) of the intention to make a claim. The executor will likely not distribute the estate until the claim is finished.

In NSW, you must file a claim with the Supreme Court under the Succession Act claiming you are both eligible and entitled to receive a provision or a greater benefit from the deceased’s estate. However, if you were not named a beneficiary in the will or otherwise as well as having not received any benefits from the estate, you can file a Family Provision Claim.

If the estate claim is not resolved before going to court, a trial will be set and both parties will need to present their needs and evidence to the court at the final hearing. The defendant will need to prove that they have a financial need and this need will be measured by the size of the estate.

Time limits

There are time constraints to challenge a will. Here is an outline of the statutes of limitations in each state:

  • Victoria: 6 months to the data of the granted probate.
  • Queensland: 6 months from the date of death to notify the executor of the claim and up to three months to lodge the claim with the court thereafter.
  • ACT and NSW: 12 months from the date of death to lodge a claim with the courts.
  • Western Australia: 6 months after probate.
  • Northern Territory: 12 months from the date of probate.
  • Tasmania: 3 months to lodge a claim with the court after probate.

If for some reason you cannot file a claim within the time limits, speak with your lawyer. There are exceptions to the statutes of limitations but the decision is at the discretion of the court.

Points that the court will consider when deciding on a claim

Although you may be able to file a claim as an eligible person, you are not guaranteed entitlement to a provision from the deceased’s estate. The court will assess each claim individually on a case-by-case basis to determine a claimant’s provided entitlement if there is one.

The court will consider several points in its determination including:

  • The relationship of the claimant to the deceased.
  • The financial need of the applicant.
  • Any financial or non-financial support you contributed to the will-maker.
  • Any evidence as to why the will may be invalid.
  • Whether the will-maker left enough for the applicant.
  • The physical, mental and intellectual disability level of the applicant and other beneficiaries.
  • How other beneficiaries will be affected by the change if one is made.
  • If the will-maker had a moral duty to the applicant.

It’s important to involve a solicitor who specialises in family law as early in the process as possible. Your compensation lawyer will help you gather the information you need, submit the necessary documents and applications, and guide you through the legal processes.

Gerard Malouf & Partners is here to help

We are the leading Australian no win, no fee firm and we specialise in maximising the compensation results for your family law claim. We have 25 offices across the country, covering Queensland, New South Wales, ACT and Victoria. However, if you live outside of these areas, we can make an appointment for a consultation.

If you feel like challenging a deceased’s will or have questions about how to go about filing a claim, make an enquiry for no-obligation legal advice.

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