Contesting a Will


How to contest a Will in Australia

You may have heard stories from family or friends about someone ‘contesting or challenging a Will’. You may be wondering why anyone should be able to challenge your Will, which is a clear statement of the Will-maker’s wishes. In this blog, we will explain who can contest a Will and the circumstances in which they can do so.

Ultimately, the rules allowing challenges to Wills exist to ensure fairness and to protect both the Will-maker and their loved ones.

Challenging the validity of the Will

Will not made correctly

Sometimes people are concerned that a loved one’s Will was not made correctly and therefore should not be taken as a true statement of their wishes.

One common scenario is that the loved one has made the Will without the mental capacity to do so, usually as the result of a degenerative illness. In this scenario, our client would not want the Court to grant Probate of an inaccurate Will and would seek to stop that process.

Issues of coercion or undue influence

Similarly, some may feel that their loved one made the Will under the undue influence of another family member. Successful claims of undue influence are rare, but they do occur, especially if the Will-maker also lacked capacity.

Forged Wills

Finally, a client may have concerns that an Executor is attempting to gain probate of a forged Will. While this is uncommon, it is imperative in these situations that the Court is aware of the potential forgery and can make a decision on whether the Will is valid.

In these three scenarios, we can look at lodging a caveat against a Grant of Probate. A caveat puts a stop on the Grant of Probate until the issue is resolved or the caveat expires or is withdrawn.

Under Section 58 of the Administration and Probate Act 1958 (Vic), any person can lodge a caveat against the making of a grant; however, we would not recommend doing so unless you can show that the circumstances surrounding the Will are at least suspicious and require further attention.

If you believe that a Will has been made improperly and that someone will try to obtain probate of the Will, please contact us as soon as possible to discuss your options.

Contesting a Will; claims for further and better provision

If an individual feels that a Will-maker has excluded them from a Will unfairly, or left them a smaller amount than they deserve, they can bring a claim for further and better provision under the Will. This is also commonly referred to as a Part IV claim because it is under Part IV of the Administration and Probate Act 1958 (Vic).

We see these claims more often than claims of undue influence or forgery and they arise in a variety of family situations.

Who can contest a Will?

The Administration and Probate Act limits the category of people eligible to bring a claim for further and better provision from the estate. These are:

  • A spouse or domestic partner of the deceased;
  • A child of the deceased;
  • A stepchild of the deceased, or someone who believed the deceased was their parent for a substantial period;
  • A former spouse or domestic partner of the deceased, subject to certain conditions;
  • A registered caring partner of the deceased;
  • A grandchild of the deceased; or
  • A member of the deceased’s household.

A caring partner, grandchild or member of the deceased’s household must have been wholly or partly financially dependent on the deceased to make a claim.

The applicant must show that the deceased owed them a ‘moral duty’ to provide for them, and the current distributions under the Will do not satisfy their duty.

What does the Court consider in contested Wills?

The Court will consider a range of factors, including the extent of the moral duty and the extent to which any adult children can reasonably provide for themselves.

The Court will look at evidence regarding the relationship between the applicant and the deceased. If they are estranged, for example, the evidence may point away from a moral duty, while a close relationship where a child supported a parent during their illness, may indicate a greater moral duty. The Court will also consider the financial situation of the applicant.

Get help from a Wills and estate planning lawyer

We cannot guarantee that any Will is ‘challenge-proof’, but we can advise you on how to best to write your Will to mitigate the risks. It is particularly important that you seek legal advice should you wish to omit someone from your Will to whom you may have a moral duty.

David Davis & Associates also represents individuals who feel that they have been unfairly excluded under a Will. Contact us today to discuss your options in relation to contesting a Will with a claim for further and better provision.

Contact David Davis Lawyers

Phone: 03 9014 1299

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