Grounds for Contesting a Will
Summary by Eric Butler.
Law Society Accredited Specialist Wills & Estates.
Listed in Doyle's Guide to Best Lawyers.
Recipient of Pro Bono Law and Justice Award
Free Call: 1800 960 156
If you've been left out of a will or not properly provided for in the will, you may be eligible to apply for a family provision order. Each Australian State has slightly different 'grounds' and 'eligible persons' for contesting a will however the following 'Grounds' are the same for each State. An eligible person can extend to married spouses, de facto spouses, children of all ages, stepchildren of all ages, grandchildren of all ages, same sex relationships and close personal relationships.
However some cases are more complicated then others. The more complicated family claims can be grandchildren and stepchildren. Please follow the link for more information about these two categories of eligible persons.
The grounds for contesting a will are basically the same in each State.
1. You must be an 'eligible person' to make a claim;
2. You need to demonstrate to the court that you have a financial need for provision and that the deceased had a moral obligation to you yet failed to make adequate provision for your proper maintenance and support;
3. To be successful you must demonstrate that you have a financial need greater than that of your competitors (other family members) or that the estate is large enough to provide extra funds to you without greatly affecting the share of the other competitors and the beneficiaries named in the will.
The following a list of more specific 'Grounds' the court will take into account when you make an application for provision out of the estate.
- Your financial need is the most important consideration to be established;
- Your character and conduct and relationship with the deceased;
- Any obligations or responsibilities the deceased owed to you;
- Any contribution you made to the estate or the welfare of the deceased;
- The size of the estate and any estate liabilities;
- Your financial position compared to other competitors;
- The financial circumstances of any other person cohabiting with you;
- Any physical, intellectual or mental disability you may have;
- Any provision made by the deceased to you during your lifetime.
Who has Priority. Some family members have priority over others. Here are some details that will help you understand the different priorities, categories or rules.
- The court will not change a will just because it is unfair.
- All applications for provision (or extra provision) are based upon the financial circumstances and the health of each family member as well as the extent to which the family member was dependant upon the deceased during his or her lifetime. (Here I will simply refer to this as “care’).
- De facto spouses have basically the same rights as married spouses.
If you are financially secure it is most unlikely that you will have a successful claim, unless there are special circumstances. Any contribution that you made to the deceaseds estate or financial health or well being may be taken into account.
- Certain family members can expect more provision than others.
- For example spouses are generally regarded as having more need than other family members.
- The length of a relationship such as a spouse relationship is very important. For example a spouse of twenty years or more will have a very strong claim.
- The different family member is also important. For example, all other things being equal, generally a child will have a stronger claim than say a stepchild or grandchild.
- Another example, all other things being equal, generally a spouse will have a stronger claim than children, stepchildren or grandchildren.
- Another example, all other things being equal, generally someone who had a close personal relationship with the deceased and who was dependant upon the deceased will have a stronger claim than children, stepchildren or grandchildren.
- However the length of a relationship is also very important. For example a stepchild may have a stronger claim than someone who had a close personal relationship with the deceased for only a short time.
- Another example, all other things being equal, generally a young child will have a stronger claim than older children, stepchildren or grandchildren.
- Another example, all other things being equal, generally a disabled child will have a stronger claim than older children, stepchildren or grandchildren.
- Whilst I have suggested some basic principles above, every case is different. Every family member has different financial needs and different health requirements and a different relationship with the deceased.
- As lawyers our job is to look at the personal circumstances of all family members involved in each type of claim. Only then can we give responsible advice to our clients (whether we represent claimants or beneficiaries). And only then can we hope to achieve an agreed settlement.
- So, whatever the type of case, as lawyers we must look at the circumstances of every family member and attempt to sort out who should receive what (in accordance with law). A good lawyer will give good advice and sufficient for you to settle a claim without the need to go to court.
- If clients reject good advice they do so at their peril because going to court to have a judge decide a claim is like going into a casino except win or lose everyone (except the lawyers) lose in some way, either financially or emotionally.
Free Call: 1800 960 156