Who Can Contest a Will
Contesting a Will is the same as making a Family Provision Claim.
Summary by Eric Butler. Law Society Accredited Specialist in Wills & Estates Law. I've worked the last 24 years doing nothing but family provision claims.
Free Call: 1800 960 156
Before you continue reading, a word of warning.
Nothing is 'Black' or 'White' in this area of law; there is a lot of 'Grey". Every family is different and every case is different and there is nearly always an exception to every rule. I'm telling you this because after reading the information hereunder you might think you are not entitled to make a claim. That may or may not be the case. Give me a call anyway and I will give you the answer.
Many times over the years I have had clients phone me for a second opinion when they have been told by another solicitor they have no case. Mostly the other solicitor has been correct HOWEVER many times the solicitor has missed an important point and been wrong. I took over those cases and settled them successfully.
So, Who can Claim? the following people can:
There are slight differences in the wording in each Australian State but at the end of the day all States really have basically the same rules. However, because there are slight differences I urge you to give me a call if you are in doubt as to you rights.
1. Spouse of the Deceased Person.
This category includes a wife or husband of the deceased marriage at the time of death and the de facto wife or husband of the deceased at the time of death. In the case of a marriage it is obviously easy to determine whether the marriage existed at the time of death. If there is no divorce the marriage still exists. That is simply a matter of fact which can be substantiated by Family Court records.
However it is not so easy in the case of a de facto marriage. In fact it is often extremely difficult to determine when a de facto marriage has ended. A separation of a couple for either a short time or a long time may not mean the relationship has ended. These cases often go to a hearing before a judge for a decision.
This category of applicant normally has priority over other applicants.
2. Former Spouse of the Deceased.
The former husband or wife of the deceased. After a divorce clearly the divorced person may be identified as a former husband or wife. It is not quit as easy in the case of a former de facto husband or wife although it becomes easy when it is either agreed the couple had ended their relationship or a judge makes that decision.
The success of this category of applicant depends upon the details of the 'divorce' and property proceedings in the case of married persons and the separation court order or property settlement between de facto couples. For example, if it was determined that the former wife or husband was the victim of fraud or misrepresentation or some other poor conduct by the deceased which financially effected the 'divorce' or 'separation' settlement, the former husband or wife may have a good claim for provision out of the estate on the death of the deceased.
It is also very relevant to look at the extend, if any, the applicant was dependant upon the deceased between the date of 'divorce' or 'separation' and the date of death. There have been numerous cases where a former spouse has continued to financially support his or her former spouse. The former spouse then being dependant upon the deceased would normally enable him or her to have the benefit of a successful claim.
3. Child of the Deceased.
This category includes natural children adopted children of any age but does not stepchildren or grandchildren. Grandchildren and stepchildren can make a claim, details hereunder, however normally claims by children will have priority over grandchildren and stepchildren.
Children under 18 years of age or children under 25 years of age continuing their education normally have priority over older children.
A child who have been estranged from his or her deceased parent is eligible to claim however the details of the estrangement will be the subject of investigation. The length of time of the estrangement is important together with details of the cause of the estrangement and attempts to reconcile the estrangement. Judges have often said that it is the responsibility of the parent as the older and wiser family member to avoid estrangement and to be dominant in a reconciliation of the estrangement.
Some claims have been successful by a child who has hardly had any contact with the deceased parent because it was the parent who left the child at a young age.
4. Parent of the Deceased.
Parents are referred to eligible applicants in Queensland and specifically allowed to make a claim for provision out of the estate of their deceased child. The parent would have to demonstrate that he or she was wholly or substantially maintained and supported by the ceased at the time of death. In other States the parent, whilst not being classified as 'eligible' would, to be successful need to demonstrate that they lived min the same household, was dependant upon the child and that there was a moral duty owed them by their deceased child and that they were dependant upon the child.
5. Grandchild of the deceased.
Grandchildren can claim however the rules differ from State to State. For detailed information about grandchildren please go to: Grandchildren Contesting a Will.
6. Stepchildren of the Deceased.
Stepchildren can claim however the rules differ from State to State. For detailed information about stepchildren please go to: Stepchildren Contesting a Will.
7. Any Person in a Relationship with the Deceased.
'Any other person' is referred to in each State law one way or the other. The person intending to make a family provision claim would normally need to be living in the same household as the deceased at the time of death and been wholly or substantially financially supported by the deceased person at the time of death. The relationship would normally need to be described as one where the parties were living in a close personal relationship at the time of death or establish some moral duty on the part of the deceased. If the 'any person' is under 18 years of age or under 25 years of age and continuing education the claim would be stronger.
It's worth repeating:
Nothing is 'Black' or 'White' in this area of law; there is a lot of 'Grey". Every family is different, every relationship is different and every case is different and;
there is nearly always an exception to every rule.