Contesting a Will

In todays environment, Wills are increasingly being challenged. The reasons for this could be a range of factors, the most common being where the Will maker had capacity or had failed their moral duty to provide for someone. These duties will vary from case to case.

Generally, there is a duty to provide for your next of kin, whether this be your spouse or de facto partner, although this can vary, and is dependent on your circumstances. Court decisions have determined that the wealth of a claimant (especially in the case where other beneficiaries are not as wealthy) can be a relevant consideration when deciding whether to award a claim or not.

There are three main avenues for statutory claims, namely the Property (Relationships) Act, the Family Protection Act and the Law Reform (Testamentary Promises) Act. Other avenues of claim include disputing the validity of the Will, perhaps through arguing the Will maker lacked testamentary capacity or undue influence was present on the Will maker when drafting their Will.

Property (Relationships) Act 1976

This act provides for relief for a spouse or de facto partner of the deceased. Under the Act, a spouse/civil union partner or de facto partner is entitled to no less than they would have been entitled to if they had separated from the spouse during their lifetime.

Family Protection Act 1955

Under this Act, certain classes of people can make a claim against a deceased estate. These classes include the spouse, civil union or de facto partner, children of the deceased, and in limited cases, grandchildren, stepchildren or parents of the deceased.

If the claimant believes that there is insufficient provision for them under the Will, they can apply to the court for an increased share of the estate. Such an application is normally defended by the other estate beneficiaries. The court can make an order to increase the provision for the claimant if the court believes that the provision under the will was inadequate.

Law Reform (Testamentary Promises) Act 1949

If the deceased made an express or implied promise to someone that they would reward them in their Will for services or work provided in the deceased’s lifetime, and the deceased didn’t follow through in their Will, the aggrieved party may have a claim under this Act. The onus is on the person making the claim to prove their entitlement. It should be noted that depending upon the circumstances, the court may have a wide interpretation of what might constitute a service and therefore be covered under this Act.

Actions against the validity of a Will

This action of claim applies where an applicant believes the Will makers true intentions are not reflected in their last Will.

This could be an allegation that the person lacked testamentary capacity or that there was undue influence or pressure from a third party when the Will was made. Actions under theses grounds may prevent the granting of probate until the issues are resolved thereby delaying the administration of the estate.

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