What Are The Grounds For Contesting A Will?

Each state and territory in Australia has its own laws that deal with challenges to a Last Will and Testament. However, the circumstances for contesting a will are generally similar Australia-wide. The laws in each state and territory allow a claimant to challenge the deceased estate by contesting the will.

But it’s important to understand that to do this, you must be classed by the court as an ‘eligible person’ with sufficient grounds to claim within the relevant time limit. As a claimant, you must prove that the testator (will-maker) had a duty to provide for you and that you need financial support.

The 2 Main Grounds For Contesting a Will

Invalidity:

Grounds for contesting a will under invalidity means the will is not legally valid. This can happen for several reasons, such as:

The will was not signed correctly.
The will was not witnessed correctly.
The testator (the person who made the will) did not have testamentary capacity, i.e., they did not understand the nature and effect of the will or were not of sound mind.
The will was forged or altered, or there is a later will.
The testator was tricked or coerced into making the will favouring a beneficiary or beneficiaries.

Inadequate Provision:

Inadequate provision means the will does not adequately provide for an eligible person with the right to make a “family provision claim”.

If you are a family member and the will-maker has left you out of their will or not made adequate provision to cover your proper maintenance, education and advancement in life from the estate, you may be able to make a Family Provision Claim.

Who Can Contest a Will and Why?

A person may have grounds for contesting a will if a will-maker made inadequate provision for them or excluded them from the will unjustly. To contest a will, you must take it to the Supreme Court. Applications must be made within 12 months of the death of the will-maker. If the court finds sufficient grounds, it can redistribute the estate to benefit you.

If you are considering contesting a will, you need to determine whether you have sufficient grounds by seeking legal advice from your lawyer or the Wills & Estate Disputes Helpline to discover the following:

Are you an “eligible person” under relevant legislation?
Has the testator not made fair or adequate provision for you?
Do you have a legitimate financial need to be provided for from the deceased estate?
Will your claim be made within the statutory time limits? If your claim is outside the time limits, do you have a solid reason for a late application?

Who is Eligible to Make a Family Provision Claim?

Under Section 57 of the Succession Act, only an eligible person can claim a family provision. Those deemed eligible persons who can make a family provision claim in the Supreme Court are:

A surviving husband or wife of the deceased person, including those in defacto partnerships.
A child of the deceased person, including adopted children.
A former divorced wife or husband of the deceased person.
A person who was either wholly or partly dependent on the deceased or was in a close relationship with the deceased or a member of the deceased’s household.

The Reasons the Court May Consider a Claim

Family Provision Claims will vary, but the Court will generally consider evidence if the eligible person:

Was dependent on the deceased person.
Believes the will is grossly unfair or the share of the deceased’s property is insufficient for their maintenance and support.
If the eligible person’s relationship with the deceased began after the last will was made.
If the eligible person was a former partner, the will does not provide enough for them or for children from previous marriages or de facto relationships.
If the eligible person can prove that one or more beneficiaries unduly influenced the will-maker.
If the will is unclear.

Contact the NSW Wills & Estates Helpline

The contents in this article are general and should not be wholly relied upon for you or your family members to decide on contesting a will. Call us at the NSW Wills & Estate Disputes Helpline today for more information about your circumstances and grounds for contesting a will or applying for a family provision order.

Call us if you wish to draw up a will with an experienced Succession Act lawyer who will ensure your intentions are clear. Our lawyers are seasoned experts, so don’t hesitate to contact us at 1300 679 222, email willscontesting@gmail.com, or fill in the online enquiry form here, and we’ll get back to you immediately.