Partner at Cavell Leitch Law
Partner at Clark Boyce Lawyers
How to contest a will
On what grounds can I challenge a will?
If you believe that you have not received a sufficient benefit under a will and you fit certain criteria, you may be able to challenge the will.
There are several different ways in which you may be able to do this:
- If you are a close relative and you feel you have not been provided for as you should, you can challenge the will under the FAMILY PROTECTION ACT 1955.
- Whether or not you are a relative, if the deceased promised to include you in the will in return for services that you provided, you may be able to challenge the will under the LAW REFORM (TESTAMENTARY PROMISES) ACT 1949.
- If you are the deceased's husband or wife, or their civil union or de facto partner, you are entitled to have the property of the relationship divided under the equal-sharing rules of the PROPERTY (RELATIONSHIPS) ACT 1976, instead of taking under the will.
- There may be grounds for challenging the legal validity of the will (for example, if it was not properly witnessed).
The immediate effect when you notify the court that you intend to challenge a will is that the executor or trustee under the will (that is, whoever is responsible for distributing the deceased person's estate to the beneficiaries) must not make any distributions from the estate, apart from debts, expenses and funeral costs.
Challenges under the Family Protection Act
Under the FAMILY PROTECTION ACT 1955 you may apply to the Family Court or High Court to be provided for out of the deceased's estate if you are the deceased's:
- husband or wife, or civil union or de facto partner (but see below the restrictions applying to de facto partners)
- dependant step-child
- parent, if you were dependent on the deceased or if no spouse, partner or child of the deceased is living when you apply to the Court
The court will uphold your claim if it believes that the deceased failed to fulfil his or her moral duty to provide adequately for the maintenance and support of family members.
In making its decision the court will balance this moral duty against the principle that a testator should be able to decide what is to happen to his or her property.
Since 1 February 2002, a de facto partner (including a same-sex partner) who was living with the deceased when he or she died has had the right to apply under the Family Protection Act. However, if the relationship was for less than three years, the court cannot make an order in favour of the de facto partner unless the court is satisfied that
- either -
- there is a child of the de facto relationship, or
- the de facto partner made a substantial contribution to the relationship, and
- not making the order would create serious injustice to the de facto partner
Those restrictions applying to de facto partners do not also apply to civil union partners.
Challenges under the Law Reform (Testamentary Promises) Act
Even if you are not a close relative, you may be able to bring a claim under the LAW REFORM (TESTAMENTARY PROMISES) ACT 1949. This covers situations where you have worked for or given some other service to the deceased, who in return promised to leave you something under the will.
You will need to provide satisfactory proof of the promise, and this can sometimes be difficult. Evidence can be oral or written â€“ for example, letters.
To justify a claim it is not necessary for the promise to have been made before you provided the work or services.
Division of property under the Property (Relationships) Act
Under the PROPERTY (RELATIONSHIPS) ACT 1976, the legal spouse or civil union or de facto partner (including a same-sex partner) of a deceased person has the right to choose between either -
- applying under that Act for the property of the relationship to be divided according to the Act's equal-sharing rules, or
- not having the property divided under the Act and instead receiving the property that is given to the surviving spouse or partner under the will.
For the division of property, see How to: The division of property when a marriage, civil union or de facto relationship ends.
Applying under the Act does not prevent the spouse or partner from also applying under the Family Protection Act or the Law Reform (Testamentary Promises) Act (see above). But presumably if property is divided under the Property (Relationships) Act, this will be relevant to any family protection claim.
Challenging the legal validity of the will
You may challenge the legal validity of the will if there is proof that:
- the deceased person (the "testator") was not of sound mind (that is, was mentally incapacitated) when he or she signed the will, or
- the will was not properly signed and witnessed, or
- the testator did not know and approve of the will's contents when he or she signed it, or
- the testator was subject to "undue influence" when he or she signed the will
If the challenge is successful, then any earlier will takes effect. If there is no earlier will then the deceased is said to have died "intestate" (without leaving a valid will), and the law then dictates how the deceased's assets are distributed (see How to deal with a relative dying without a will).
- A lawyer can advise you about the merits of your challenge, and will make sure that the disputed property won't be distributed under the will until your claim is concluded or the time limit for bringing the claim has passed.
- A lawyer will also inform you of how the validity of the will is affected if the testator separated, divorced or remarried after making the will.