What It Means to Contest a Will

In Australia, a person may contest a will by making a ‘family provision claim’ under the relevant State legislation.

While each State of Australia has its own family provision laws, a person making a family provision claim will generally need to satisfy a court of the following:

1. That they are an ‘eligible person’; and
2. That they did not receive adequate provision for their maintenance, education, or advancement in life under the terms of the will.

In some States, additional criteria apply.

If the court finds that the claimant is an eligible person and that adequate provision for their maintenance, education, or advancement in life had not been made by the deceased persons’ will, the court may adjust the terms of the will in favour of the claimant to the detriment of the named beneficiaries.

Who Can Contest a Will

Who is eligible to bring a claim varies from State to State.

In NSW, for example, only a person who satisfies the definition of ‘eligible person’ as defined in section 57 of the Succession Act 2006 (NSW) can contest a will. An ‘eligible person’ includes:

• the deceased’s spouse
• the deceased’s de facto partner
• the deceased’s children
• a former spouse of the deceased
• the deceased’s grandchild who was, at any time, wholly or partly dependent on the deceased
• a former member of the deceased’s household who was, at any time, wholly or partly dependent on the deceased
• a person with whom the deceased was living in a close personal relationship at the time of the deceased’s death.

In the case of a former spouse, wholly or partly dependent grandchild or member of the deceased’s household, or those with whom the deceased person was living in a close personal relationship at the time of the deceased’s death, the person must also show that there are ‘factors which warrant the making of the application’ to constitute an eligible person. In other words, there is an additional threshold that applies to these applicants.

Finding out you have been excluded from a Will

In some cases, a person may know (or at least suspect) that they have been excluded from a will before the will-maker has even died. This may arise where the will-maker has told the person themselves, or where there has been a long-term estrangement.

In other cases, a person may only find out that they have been excluded from a will after the will-maker dies and a copy of the deceased’s will is released. This can come as a devastating surprise to many.

We provide below several steps which may help secure a share of the deceased’s estate.

Tip 1: Obtain Advice from an Experienced Wills and Estate Lawyer

If a person learns (or suspects) that they have been excluded from a will, they should seek advice from an experienced wills and estate lawyer.

An experienced lawyer will be able to review the facts and circumstances of the case and advise you of your rights, both before and after the will-maker dies, which may include a right to bring a claim for provision (or further provision) against the estate and the steps a person can take to improve the prospects of obtaining a share of the estate, including mending relationships and evidence gathering.

The advice may also surround factors which may impact the validity of the will such as undue influence, suspicious circumstances or a lack of testamentary capacity.

The lawyer should also advise on any relevant deadlines.

It is never too early to seek advice and there is often an advantage in seeking advice before the will-maker has died as the lawyer will be able to advise on additional steps which may be taken to place them in the best position once the will-maker dies.

Tip 2: (Where possible) Mend the Relationship Before the Will Maker Dies

If a person learns (or suspects) that they have been disinherited before the will-maker dies, one of the most beneficial steps a person can take is to try and repair the relationship with the will-maker.

While not always possible, this has two advantages:

1. it may increase the likelihood of the will-maker changing their will to include (or re-include) the person; and

2. the person can rely on the restoration of the relationship (including the termination of any estrangement) in the future to promote their “moral claim”.

Tip 3: Gather Evidence to Support a Claim

This step can be undertaken before or after the will-maker has died.

For example, before a will-maker dies, a person may gather evidence to substantiate their relationship with the will-maker to support a future claim.

Evidence may include:

1. emails,
2. text messages,
3. journals of discussions with and observations of the will-maker,
4. lawful recordings,
5. medical records,
6. prior promises, and
7. communication with family members.

Depending on the evidence, it may be favourable to establish the following:

1. the nature and extent of relationships with the will-maker,
2. that the deceased was not of sound mind at or around the time he or she made their will, and/or
3. that the deceased was pressured or coerced by other family members.

Although not all the evidence gathered may ultimately be used, it is often much easier and more beneficial to gather evidence during the will-maker’s lifetime compared to after their death.

Tip 4: Meet all Deadlines

Family provision claims must be commenced within prescribed deadlines. The deadlines vary from State to State. In some cases, the deadline commences from the date of death and in others, the date of probate.

A claim made after the deadline is at risk of being dismissed.

A person should seek legal advice on what deadline applies in their case and ensure the deadline is met.

Tip 5: Negotiate

Once a person has sought advice, the next step usually involves their lawyer writing to the executor (or the executor’s lawyer) giving notice of a family provision claim and setting out the grounds and facts that substantiate the claim.

Most cases can be resolved through negotiations.

Negotiations may include mediation, where the parties meet and with the assistance of an independent mediator, try and reach agreement.

In some cases, negotiations can achieve a quick and cost-effective resolution, however, in other cases, negotiations can take months and ultimately prove unsuccessful. The length and successfulness of negotiations will depend on the size and nature of the estate, the complexity of the estate, and of course, the parties’ willingness to negotiate.

If negotiations prove unsuccessful, the person may decide to commence a formal claim in court.

Tip 6: Multi-Pronged Approach

If, at the time the deceased prepared their last will, they were suffering from a serious disease, were heavily medicated, suffering from a cognitive illness, or infirm due to old age, a person bringing a family provision claim may also consider challenging the validity of the will itself.

Common grounds worth examining include undue influence, suspicious circumstances and/or a lack of testamentary capacity.

There is often an advantage in bringing a multi-pronged claim where the first claim relates to the validity of the will, and a family provision claim is brought in the alternative.

A multi-pronged claim can often bring the executor and named beneficiaries to the negotiating table as the fear of costs and delays that may prove necessary should litigation ensue.

How Empower Wills and Estate Lawyers Can Help You

If you know or suspect that you have been left out of a will or may receive less than you were expecting, contact our expert inheritance lawyers now on 1300 414 844.

We offer flexible fee structures tailored to each client’s circumstances and in some cases may be able to offer conditional or “no win no fee” agreements.

Liability limited by a scheme approved under Professional Standards Legislation.

Disclaimer: the information in this article relates to NSW law as at the date it was written and is general information only. It does not constitute legal advice and should not be relied upon as legal advice. It may contain information or links to sources which are no longer current. If you have a question or legal issue, we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts, circumstances, needs and objectives.