A will is a critically important document that allows you to dictate how your estate is to be distributed after your death. However, a will can be contested and some research suggests that more than 50% of wills are being contested in Australia. Unfortunately you can’t stop someone from contesting a will in Australia, however you can take steps to minimise a potential claim by having a will prepared by an estate planning solicitor.
Contesting or challenging a will is a process filled with legal complexities and nuances as well as an emotional strain on familial relationships. Our estate litigation experts share their knowledge based on decades of navigating disputed wills. This guide will help you understand how to contest or challenge a will, and how to minimise the risk of your will being contested, to ultimately ensure that your will reflects your wishes and objectives.
Understanding Will Disputes
There are two main ways a Will can be contested or challenged in Australia, however the specifics of eligibility and legislative requirements vary in each state and territory. Generally speaking will disputes can be categorised into one of the following:
- The validity of the will is challenged because it has not been executed according to formal legislative requirements; or
- A beneficiary asserts that the will does not adequately provide for them (often called a family provision claim)
The Legal Grounds For Contesting A Will
There are several established grounds for contesting a will, including:
Will not validly executed
There are strict legislative requirements which must be met when a will is executed. Where a will does not meet those requirements, there may be grounds to contest it’s validity. There are time limits within which such a challenge can be made and so it is important to seek legal advice if you suspect a will was not validly executed.
The following are the most common examples in this scenario:
Lack of Testamentary Capacity
Each adult who makes a will must meet the threshold of testamentary capacity at the time it was executed.
Where the will-maker had dementia, a brain injury, was under the influence of drugs or alcohol at the time of signing the will or was not in the right mental capacity at the time of the will signing; the will may be set aside (with appropriate evidence) due to the will-makers lack of testamentary capacity,
Undue Influence
Where the will-maker was coerced into drafting the will a certain way and this is proven by the complainant, the will may be invalidated. Actual undue influence is when it can be proven that another person exerted influence over the will-maker. Presumed undue influence is where there is a particular relationship of trust such as between a doctor and patient or solicitor and client.
Undue influence is notoriously difficult to prove as the will-maker is not alive to speak to their reasons and motivations for the distribution of their estate and instead courts must rely on witnesses of the relationship between the will-maker and the person alleged to have exerted influence. Furthermore, coercion (violent or non-violent) must be established to prove that the person of influence exerted such undue influence over the will-maker which left the will-maker with no choice or freedom to distribute their estate in any other way.
Forgery or Fraud
There may be some glaring signs to suggest a will has been forged or fabricated. These include:
- Where the will wasn’t executed by the will-maker in the presence of two witnesses who must also sign the will.
- Where a signature is missing or is not one that matches the will-maker’s handwriting.
- Where the will contact many errors such as the misspelling of names or personal details of loved ones.
- Where the beneficiary of the will is someone who was unlikely to be someone the will-maker wanted to leave their estate to.
Making a Family Provision Claim
If a will is found to be validly executed and there are no concerns around the way in the which the will was made, there may be grounds to contest a will under family provision laws which vary in each state and territory in Australia.
Who can make a family provision claim?
“Eligible persons” to contest a will are set out in legislation in each state and territory and generally speaking include spouse (including de facto partners or former spouse or de facto partners), children, step-children, grandchildren (if they were financially dependant), members of the deceased’s household or someone who was otherwise dependant on the deceased or was supported by the deceased financially.
What are the grounds for making a family provision claim?
If you are an eligible person, then courts will consider all of the facts some of which include the following:
- Whether the will-maker had a ‘moral duty’, obligation or responsibility to provide for the claimant;
- The size of the estate and the nature of the assets of the estate;
- Whether adequate provision has been made for the claimant;
- The needs of the claimant including consideration of any physical, mental or intellectual disability;
- The financial need (including earning capacity) of the claimant and any other beneficiary of the estate;
- The nature and duration of the relationship between the will-maker and the claimant (including if the claimant was fully or partially dependant and the character and previous conduct of the claimant);
- How the other beneficiaries of the will may be affected by any change to the distribution of the estate including weighing up their needs; and
- Any contribution the claimant may have made to the deceased’s estate and not received adequate financial compensation for such contributions.
As circumstances vary from each matter and individual, we recommend that you contact our experts for an initial cost free case assessment so we can assess the merits of your potential claim and provide you with initial advice.
Time Limits To Contest a Will
Regardless of what type of challenge you wish to make against a Will, there are strict time limits in each state and territory which vary so seeking legal advice in a timely manner is essential.
What Are the Costs Involved?
When challenging a will in Australia, costs can be a primary concern. Costs will vary based on which state you’re in and are dependant on the specific circumstances surrounding the claim including the complexity, the number of parties involved and the duration.
Generally speaking the person bringing the claim is responsible for their own legal fees.
However, in most cases the parties may agree to have legal costs paid from the estate if the claim is settled at mediation. It is critical to be mindful that where a claim proceeds to trial, legal fees will escalate significantly and it is therefore always in the best interests of all parties to attempt to resolve the dispute as quickly as possible.
Can I Contest an Intestate Estate?
If a loved one dies without a valid will, they are deemed to have died intestate. Each state and territory in Australia sets out a specific formula for the distribution of an estate upon intestacy which will vary depending on the deceased’s family situation (the intestacy formula)
One of the most common misconceptions we hear is that the government will receive a person’s estate if you die without a will. The truth is that this only happens in exceptionally rare circumstances and where there is no next of kin left of the deceased.
An eligible person may still bring a family provision claim against an intestate estate within the statutory time limit to seek further provision if the intestacy formula does not adequately provide for the claimant.
Can Wills Be Contested Without a Lawyer?
Technically, yes, but a qualified wills and estates lawyer representing your interests ensures you understand the laws involved with contesting wills in the relevant state or territory, and can assist in alleviating the burden of navigating the legal system and complexities of your matter during an emotionally fraught time.
Ask Our Estate Litigation Experts About Contesting a Will
If you're considering contesting a will, or if you are an executor defending a claim, contact our wills and estates team for an initial cost free assessment so we can advise you on the merits of your potential claim.
Conversely, if you want to discuss minimising potential claims against your will in the future then a discussion with an estate planning lawyer and a properly drafted and executed will could save your estate and beneficiaries thousands of dollars by minimising the likelihood of a claim. Get in touch with our wills and estates team today.
