FAQ: Contesting a Will

Q: Is it possible to contest a will?

A: Yes. Some people assume that a will is set in stone, no matter how unfair its terms, but this isn’t true. When family members are left out of a will, for instance, it is often possible to legally contest the will and get compensation.

Q: What if there is no will?

A: If there is no will, the deceased person’s estate is distributed by law to spouses and partners, then children, then next of kin. If Aunty Maude dies without a will, her distant relatives can unexpectedly come into an inheritance. In legal speak, this is called an ‘intestacy’, and the distribution of assets by law can be challenged. (Many of the answers in this FAQ also apply to intestacy situations.)

Q: Could I end up out-of-pocket from contesting a will?

A: Not with Constable Connor, you won’t. We have a no win / no fee / no risk policy, which means that you’ll only be charged out of what we win for you. If the claim fails, you will not have to pay anything. With us, you also won’t be on the hook for any court fees that may be hidden throughout the process – a guarantee that, to our knowledge, no other lawyers make.

Q: Is there a time limit beyond which I can’t contest a will anymore?

A: Yes, although the time limit differs from state to state. In Victoria, you have 6 months from the date of grant of probate to lodge a claim in court. In New South Wales, it’s 12 months. In Queensland, you’ll need to notify the executor within 6 months, and lodge the claim within the next 3 months after that. In all cases, though, it’s advisable to seek legal advice and begin the process as soon as possible. It is possible to lodge claims out of time, but it is best not to play around with these time limits.

Q: What makes for a successful claim?

A: There are a number of different grounds on which a person may successfully contest a will. The most common ways are:

  • By arguing that the deceased wasn’t of sound mind when they made their will
  • By claiming that they were under undue influence when they made their will
  • By making a Family Provision Claim

Any of these strategies can be successful in the right circumstances, but Family Provision Claims are the most common – and most commonly successful – way of contesting a will.

Q: What is a Family Provision Claim, and when are they successful?

Family Provision Claims are made when family members and others feel that they have been unjustly omitted from a will, or otherwise inadequately provided for. The idea here is not to challenge the legal validity of the will, but rather to dispute the fairness of the way the deceased intended for their assets to be distributed.

For a family provision claim to be successful, you will need to demonstrate that you did not receive ‘Adequate Provision for Proper Maintenance and Support’. When determining whether adequate provision was provided in a given situation, among other factors, the court may consider:

  • Your relationship with the deceased, and how much of a moral duty they had to provide for you
  • Whether you’ve already received adequate provision from the estate
  • Any financial or non-financial contributions you made to the estate
  • Your financial resources and ability to provide for yourself
  • The needs of any other beneficiaries or claimants, and how they would be affected if your claim were successful

With a successful Family Provision Claim, the exact amount of compensation you get will be worked out on a case-by-case basis. Every claim is unique, as is each payout.

Q: Who can make a Family Provision Claim?

A: Family members and “members of the household” can make a Family Provision Claim. These categories include children and spouses, but also step-children, grandchildren, ex-spouses, partners, ex-partners, registered carers, and certain other kinds of dependent relationships if they can be proven. If you’re in a position where you want to contest a will but aren’t sure if you have the legal standing to, give us a call and we’ll be able to determine that for you. Victoria used to have the most liberal system in Australia, but now has the most restrictive, with the “member of the household” category currently being a hotly-contested issue.

Q: The deceased wasn’t of sound mind when they made the will – can I challenge it?

A: Yes. This is referred to as the deceased lacking ‘testamentary capacity’, and is a way to challenge the legal validity of the will itself. To successfully argue this, it must be proven that the deceased lacked the mental capacity to make a legally binding will, and so the will does not accurately reflect their wishes. In such cases, the will gets thrown out, and the deceased’s assets are instead distributed according to previous wills or the intestacy laws (i.e. the way estates are distributed when there is no will to work from).

Q: What if the deceased was being coerced when they made the will?

A: This is referred to as ‘undue influence’, and is another ground on which a will can be challenged. When people are forced or unduly persuaded to include certain things in their will – or to exclude certain people – this ought to render the will invalid. This can be extremely difficult to prove, however, as it requires evidence that the will doesn’t match the deceased’s real wishes. If such evidence can be found, however, then the will’s stated distribution of the estate may be overturned.

Q: What if the deceased told me I’d be getting something, but then it’s not in the will?

A: This is what’s known as ‘proprietary or promissory estoppel’: essentially, verbal promises made that haven’t been honoured in the text of the will. It can be possible to make such promises count when contesting a will, but to do so it has to be proven that:

  • The deceased made you a promise
  • You relied on this promise and believed it was true
  • You’ve been disadvantaged because of this reliance

It can be devastating to have planned your life around a promised inheritance – for example, taking or quitting jobs, relocating, or making other kinds of life choices on the basis of that promise – that then is not reflected in the will. If this describes your situation, with sufficient legal counsel you will probably be able to get that proprietary or promissory estoppel claim over the line.

Q: Can I contest the will of someone I was estranged from?

A: In some circumstances, yes. If you were estranged from the deceased when they died, the court will take this into account in its deliberations, and assess things like the cause and duration of the estrangement. Such cases are often complicated, but it’s important to understand that estrangement by itself is generally not considered to overrule something like a parent’s obligation to provide for their child. If you have been estranged from a deceased who has left you out of their will, don’t lose hope – that doesn’t automatically mean that you’re not entitled to anything.

Q: How do I contest a will?

A: By contacting a will disputes lawyer and having them begin the process. As mentioned earlier, your three options for contesting a will are:

  • Making a Family Provision Claim
  • Challenging the testamentary capacity of the deceased when they wrote their will
  • Alleging undue influence or coercion in the creation of the will

Each of these different types of claim will require evidence. Constable Connor can guide you through this process, and organise your case with everything it will need to succeed. The key is going into the negotiations as well-prepared as possible, with an experienced will disputes lawyer on your side.

Q: Will I need to go to Court?

A: Not necessarily. In the vast majority of cases, will disputes are settled (and settlements awarded) without ever actually needing to go to Court. The first way forward is for the parties involved to attempt to negotiate a settlement. Because this is generally easier and quicker and less expensive than going to Court, many people will opt for this when given the chance.

If a mutual agreement can’t be reached through more informal negotiation, however, you will likely be referred to mediation: a confidential meeting mediated by a lawyer, in which the executor of the estate is required to disclose a full list of the estate’s assets and their value. This is also a more painless and cost-effective option than Court, with the goal being to come to an agreement there and then that can leave both parties satisfied. It often isn’t only money at stake in these disputes, after all, but also relationships, and mediation offers the best chance at ensuring that the relationships involved are not irrevocably damaged.

It is only when no agreement is able to be reached by negotiation or mediation that a will dispute will go to Court.

Q: Can I contest charitable donations in a will?

A: Sometimes. When individuals choose to include charities in their wills, there are a number of different forms this can take.

  • Fractional (where the deceased has specified a certain percentage of their estate to be gifted to a particular charity)
  • Residual (where the deceased has opted to gift ‘everything left’ to a charity after the specified distribution to the beneficiaries)
  • Pecuniary (where a particular asset is gifted outright to a charity)
  • Whole Estate (where the deceased has left their entire estate to a charity)

Of these, residual bequests are the most common, and the most commonly challenged. Because the value of an estate can fluctuate, a residual bequest can turn out to be much larger than the deceased intended when they originally wrote the will, and the share of the estate going to the beneficiaries much smaller. In such cases, it can be possible to redraw the bequest through a will dispute.

Q: Can I contest a foreign will?

A: In some circumstances, yes. If the deceased made their will while in a foreign country, then relocated to Australia but didn’t update their will, this presents challenges to the will dispute process. Inheritance law differs dramatically in different countries, and negotiating assets across national lines can be extremely complicated. It is not impossible, however, to successfully contest a foreign will. If you are in this situation, you should discuss the specifics of your situation with an experienced wills lawyer as soon as possible.

Q: I’m unsure about all this. What should I do?

A: Give us a call. Wills law is complex, and every situation is different. These FAQs are here only to provide a very general orientation about the legalities of contesting a will. By far the best way to get a handle on your situation is to talk to us directly, and let us guide you through whatever process is appropriate for you.

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