Contesting a will made by a loved one is a major undertaking. And every story behind a contested will is unique.
If you believe a deceased’s estate has not made adequate provision for you as the beneficiary, the best course of action may be lodging a family provision claim with a district court or supreme court.
Read about five common examples that have led to a family member or loved one contesting a will to gain a greater understanding of how estate litigation is handled.
Who can submit a family provision application?
The purpose of contesting a will is to further improve the provision for a beneficiary or someone who the testator may have a moral obligation to provide for through their estate.
A family provision application or family provision claim made to the district or supreme court is the first step to disputing a testator’s will.
As you might imagine, the criteria the court uses to discern whether or not you have a legitimate family provision claim will depend on the specific circumstances of the claim.
Generally, the court will assess your claim based on the following factors:
- Is the claim made by an ‘eligible person’ like a surviving spouse, civil partner, child or a dependent of the deceased?
- Has the applicant been left out or not received adequate provisions in the testator’s will?
- Is the claim on time? Each state has a different timeline for making an application. For example, in NSW, the deadline is 12 months from the date of death and in Queensland, it’s nine months.
Anyone who believes that a testator’s will didn’t adequately provide for them should consider consulting an expert in inheritance disputes. An experienced contesting wills lawyer will be able to advise if you have a strong case or not.
The process of filing a family provision claim
The process of filing a family provision claim differs between each state and territory. In some states such as NSW, an eligible person may file a family provision claim before probate has been granted. However, in the Northern Territory, South Australia, Tasmania, Victoria and Western Australia, you need to make a family provision claim after probate. Experienced compensation lawyers know the specific requirements in each state and can help guide you through the process.
Typically, a negotiation with a mediator is required after the claim has been made. If an agreement of provision is reached, the estate will be distributed (or redistributed) directly, without the claim being brought to family court. The mediation process can take up to six months.
If the parties are not able to reach a solution, a family court will make a decision. Be aware that family provision claims can take more than two years to reach a hearing, so if an agreement can be made during mediation that will be the fastest and easiest option. However, in some cases, a court determination may be the only way for a contestor to receive an adequate share of the deceased’s estate.
5 reasons for contesting a will
Here are five examples of common reasons to why a will is contested, and what the court will consider in each of these scenarios.
1. A falling out between family members
Suppose a farmer and their spouse decide to retire but only one of their three children maintains the farm. Disagreements over family businesses or other financial decisions often lead to family members falling out.
The child who sacrifices to keep the family legacy anticipates the lion’s share of their parents’ estate — property, land, business value and superannuation fund – but the siblings challenge the will.
Anyone may bring forth a succession claim based on the undue influence of other family members.
Pursuant to the first claim, the farming child may also wish to contest their parents’ estate for a larger share of the inheritance.
In such cases, the court may consider factors like
- Obligations of the estate to the disputer.
- The value of the estate.
- The financial situation of the claimant.
- The applicant’s contribution to the value of the estate.
2. Testator’s dementia
In situations when an estate plan is changed, some may question if a testator was suffering from cognitive decline or dementia. A beneficiary may make a family provision claim based on the testamentary capacity of the deceased.
Suppose several changes to a will were made in the months leading up to the testator’s death that had a negative impact on a family member’s share of the estate. The beneficiary could then claim that the capacity of their loved one during that point in time was not sufficient to make these changes.
3. Divorce
A surviving spouse is an eligible person whether or not they were married at the time the testator made the will. In most cases, co-owned property reverts to the surviving spouse but the right of survivorship can be contested by a de facto spouse such as a domestic partner under the Family Law Act 1975 (Cth).
A testator is free to distribute their estate as they see fit. However, contesting a will based on the moral duty to provide is a common reason why former-spouses contest a will.
The district or supreme court will make a decision factoring in the obligations of the estate, the financial need of the applicant and how other beneficiaries such as children and grandchildren may be affected by changes to the will.
4. Unclear intentions of the deceased
The court takes into account the testator’s wishes but there are cases when the intentions of the deceased are unclear, making it difficult for the executor to follow the will.
Typically, these contrary intentions are caused by a poorly drafted estate plan. If the will is unclear, an executor can ask the court to rectify a will.
5. Suspicious circumstances
An eligible person can contest a will if they believe it was created or changed under suspicious circumstances. The court may consider the mental, emotional and social capacity of both the claimant and the deceased to make a decision on the will’s validity.
If the person who helped the testator create or change a will stands to gain financially, the court may require proof that the plan was made without fear, force or ill intent.
Experienced, thorough and empathetic legal advice helps those contesting a will to advocate for your best interest.
Gerard Malouf & Partners are here to help you with your claim
An estate dispute is emotionally charged and disruptive to the lives of all parties. Legal services provided on a no-win, no-fee basis can help you navigate the family court process and represent you, your child or other disenfranchised party in accordance with the law.
An entitled party may represent themselves in all Australian matters, criminal and civil. However, only a inheritance dispute lawyer who adheres to professional standards legislation may represent another party to a will dispute, such as a minor.
Contesting a will is a complex undertaking. A claim brought by an experienced contesting wills lawyer, with objectivity and expertise in the relevant laws and court proceedings for your particular region, will give your case a higher probability of success.
Your will dispute team
Gerard Malouf & Partners handles cases in every state, with offices in New South Wales, Victoria, Queensland and The Australian Capital Territory.
Contact our dispute lawyers for a free consultation.
