When a person contests a will, they dispute the fairness of the will’s provisions. This is different from challenging a will, which occurs when there is doubt that a will is legally valid. Each state and territory has different legislation around contesting a will so it is important to obtain legal advice that is applicable in your particular jurisdiction. This page outlines the general grounds for contesting a will in Australia.
Contesting a will vs challenging a will
When a person contests a will, they argue before the Supreme Court that the provisions of the will are unfair, and that the estate should not be distributed according to its terms. This may be because a family member was left out of the will, or because a family member was bequeathed less than they were entitled to.
When a person challenges a will, they argue before the Supreme Court that the will is not valid. This may be because it was not signed and witnessed properly, because there was fraud involved, or because the testator lacked testamentary capacity.
Am I eligible to contest a will?
If a person is considering contesting a will in Australia, they should ask themselves the following questions:
- Am I an eligible person under the relevant legislation?
- Has the deceased failed to make adequate provision for me?
- Do I have a legitimate financial need for provision out of the deceased estate?
- Is there adequate time to challenge the will within the statutory time limits? If not, can a late application be justified?
Who is an eligible person differs in different states and territories. Partners, spouses and dependent children are eligible persons in all jurisdictions; however, other family members such as grandchildren are eligible to claim in some states but not in others.
Legislation
The state and territory legislation that governs who may contest a will and under what circumstances is as follows.
Family Provision Act 1969 (ACT)
Succession Act 2006 (NSW)
Family Provision Act 1970 (NT)
Succession Act 1981 (Qld)
Inheritance (Family Provision) Act 1970 (SA)
Family Provision Act 1972 (WA)
Administration and Probate Act 1968 (Vic)
Testator’s Family Maintenance Act 1912 (Tas)
Inadequate provision
Anyone who is contesting a will in Australia must be able to establish that the will fails to make adequate provision for them. This means that they must demonstrate that the testator had a moral responsibility to provide for them, either because they kin (for example, the deceased’s spouse or child) or because they were financially dependent on the deceased.
The provision that is made to a person to whom the deceased had a responsibility must also be adequate. For example, if there is a sizable estate but only a minimal bequest was made to one of the deceased’s children, that child would have grounds for contesting the will.
Financial need
A person who is contesting a will must also show that their circumstances are such that they need financial support from the estate. This may be because they do not have the means to pay their bills and maintain their lifestyle or because they suffer from a condition that is likely to impact their ability to earn income or that increases their costs of living.
In order to make an award in favour of a claimant, the court will need to be satisfied that their needs are greater than the needs of any other beneficiaries who would be disadvantaged by a redistribution of the estate.
Disentitling conduct
In some cases, a family member who would ordinarily have been entitled to inherit from an estate may be found to have been disentitled. This may be because they have behaved towards the deceased in a way that resulted in the deceased no longer having a moral obligation towards them.
A court may reduce or refuse to make an award towards a claimant on the basis of their conduct towards the deceased. The amount of the reduction will depend on the nature and extend of the disentitling conduct as well as the extend of the claimant’s financial need.
What will be considered to be disentitling conduct changes over time as social attitudes change. A person who wishes to exclude a child from their will may include a statement in their will that explains the lack of provision to the person. This should be prepared with legal assistance.
Time limits
An eligible person must contest a will within the applicable timeframe. The time limit that applies to contesting a will varies from three months from the date of the Grant of Probate in Tasmania, to 12 months in New South Wales.
A person may be able to initiate a claim against an estate after the time limit has elapsed if they can demonstrate that they have compelling grounds for making a late application.
If you require legal advice or representation in any legal matter, please contact Taylor Rose.
