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When can you contest a Will?


When can you contest a Will?

In all States and Territories of Australia, it is possible to contest a will under Family Provision legislation. Contesting a will is different to challenging a will. Contesting a will involves a person claiming a greater entitlement to an estate. Challenging a will means that a person is challenging the validity of the will.

Family Provision legislation began in New Zealand in 1900, allowing the New Zealand Courts to override a will to ensure that a deceased person’s widow and children were adequately provided for. Australia followed, with all states and territories eventually enacting Family Provision Legislation. Over the years the legislation has evolved to include different categories of persons that a deceased should provide for. However every state and territory is different, so it is important to check the rules in the state or territory where the deceased lived. There are some useful links for each state at the bottom of this page.

So what exactly is the purpose of Family Provision legislation? Generally speaking, the purpose of Family Provision legislation is to ensure that a deceased person’s estate makes adequate and proper provision for certain persons who the deceased had an obligation or moral duty to provide for. The wording of the legislation in each state and territory is different, but the same general principles are applied. However, there are some very important differences between the states and territories when it comes to eligibility to make a claim, time limits and court processes.

Below is some important information to consider when contesting a will (or defending a contested will).

 

Time Limits

Every state and territory has a period of time in which a person can commence proceedings to contest a will. Commencing proceedings means actually initiating proceedings in court. Unfortunately, each state and territory has a different period of time so it is very important to know where the deceased lived so that you know what period of time applies.

For example, in New South Wales a person must commence proceedings within 12 months of the date of death. This means that in New South Wales the clock starts ticking from the date of death. Whereas in Victoria, the proceedings must be commenced within 6 months of a grant of probate or letters of administration. This means that in Victoria time doesn’t start running until someone obtains a grant.

So what happens if you miss the deadline to commence proceedings? In some cases, a court will grant an extension of time to commence proceedings. The process to apply for an extension and the way in which the application is decided is different in each state and territory.

It is also possible for parties to agree to extend the time to commence proceedings.

Although it is possible to get an extension of time, it is always best to commence proceedings within the time limit.

 

The Estate

Before contesting a will, it is important to know what is in the estate. There is no point in contesting if the estate isn’t large enough to make provision. For example, quite often properties are held in joint tenancies. When a joint tenant dies, their share of the property automatically transfers to the surviving joint tenant, so it doesn’t form part of the deceased’s estate. Property searches should be conducted, if necessary, to determine whether an estate is worth contesting.

In New South Wales, the court can sometimes make family provision orders affecting property which is held outside a deceased person’s estate. No other states or territories give the court the same power.

 

Eligibility

To be able to contest a will a person must be eligible. There are several categories of eligibility, such as spouses, children and grandchildren. However, to make things a bit more complicated, each state and territory has their own categories of eligible persons. This means that a person may be eligible to make a family provision claim in one state, but not another. Again, it is very important to determine where the deceased lived and where they held assets so that you know what legislation applies to you.

For example, in New South Wales, the following people are eligible to make family provision claims:

  • The deceased person’s spouse;
  • The deceased person’s de facto;
  • Children of the deceased;
  • The deceased person’s former spouse;
  • A grandchild who was dependant on the deceased at some point in time; and
  • A person who lived with the deceased and was dependant on them at some point in time.

In Victoria, the following people are eligible:

  • A spouse or domestic partner of the deceased;
  • A child of the deceased who:
    • Was under 18 years old at the date of the deceased’s death; or
    • Between the ages of 18 and 25 years and a full-time student; or
    • Has a disability.
  • A stepchild of the deceased who:
    • Was under 18 years old at the date of the deceased’s death; or
    • Between the ages of 18 and 25 years and a full-time student; or
    • Has a disability.
  • A person who believed that they were the deceased’s child and who:
    • Was under 18 years old at the date of the deceased’s death; or
    • Between the ages of 18 and 25 years and a full-time student; or
    • Has a disability.
  • A child or stepchild of the deceased (not within the above categories)
  • A former spouse or domestic partner of the deceased
  • A registered caring partner of the deceased
  • A grandchild of the deceased
  • A spouse of a child of the deceased, if the child died within 1 year of the deceased’s death
  • A person who was a member of the deceased’s household (or who had previously been a member and was likely to resume living with the deceased in the near future)

As you can see, the categories of eligibility in New South Wales and Victoria are quite different. It is important that you check the categories in the state that is relevant to the deceased’s estate. Check the bottom of this page for useful links for each state.

 

Relevant Factors

So, assuming that a person is eligible to make a family provision claim, what factors will be taken into account to determine if the claim is successful?

In all states and territories, the courts can take into account anything it believes relevant to the claim. New South Wales actually sets out relevant factors for the court to consider, but still provides a wide discretion for the court to consider factors that are not specifically listed.

Even though the courts can take into account anything that it believes relevant, in every family provision claim there are a few critical factors which the court will focus on:

 

  • The person’s financial needs
  • The person’s relationship with the deceased
  • The size of the estate
  • The testamentary intentions of the deceased
  • The competing needs of the beneficiaries

 

Contact us

Have you been left out of a Will or treated unfairly? We offer a free assessment of your case and a no win no fee policy. We have a specialist team that deals only in Wills & Estates servicing NSW, VIC, QLD, ACT, SA & WA. The law relating to Wills and Estates can often be complex and confusing so we encourage you to make contact with our team by phoning us on 1300 168 676.

 

Further Information

As set out above, every state and territory is different. To have a better understanding of family provision claims, click on the relevant state link where the deceased lived below.

NSW | VIC | QLD | ACT | WA | SA

Written by Alun Hill on February 7, 2019

Alun Hill is the Division Head of the Contested Estates division of Armstrong Legal. He has worked on a wide range of estate litigation matters including family provision, probate and administration, will validity claims, estate administration disputes, equitable estoppel, superannuation claims and will construction. He has appeared in estate litigation matters in the Supreme Court of New South Wales, the New South Wales Court of Appeal, the Supreme Court of Victoria and the Queensland District Court. In 2018 Alun was named by Doyles as one of the Leading Wills & Estates Litigation Lawyers in NSW. View Alun’s profile


2 thoughts on “When can you contest a Will?”

  1. Can a daughter contest on behalf of a parent who has been left out of a will in Queensland.

  2. Kylie Shaw says:

    Dear Collette,

    Thank you for your contested estate enquiry.

    Every case is different, but generally, in order to contest a Will in Queensland, section 41 of the Succession Act requires a person to fall within one or more of the following categories of eligible applicants:
    • The deceased’s spouse;
    • The deceased’s child; and/or
    • The deceased’s dependant.

    The terms “spouse”, “child” and “dependant” are defined in the Succession Act. A summary of the types of persons who might fall within each category is set out below.

    Spouse
    The following persons may be a “spouse” and therefore eligible to contest a Will in QLD:
    • The deceased’s husband or wife;
    • The deceased’s de facto partner;
    • The deceased’s registered partner (pursuant to the Relationships Act 2011); and
    • The deceased’s former husband, wife or registered partner.

    Child
    The following persons may be a “child” and therefore eligible to contest a Will in Queensland:
    • The deceased’s natural (biological) child;
    • The deceased’s unborn child;
    • The deceased’s lawfully adopted child; and
    • The deceased’s stepchild.

    Dependant
    The following persons may be a “dependant” and therefore eligible to contest a Will in Queensland:
    • The deceased’s parent;
    • A parent of a child of the deceased (provided that the deceased’s child is under eighteen);
    • Any person under the age of eighteen who was being maintained by the deceased at the date of death, regardless of their relationship with the deceased (this could include, for example, the deceased’s grandchild or step-grandchild, former step-child, brother or sister, niece or nephew or foster child.
    In order for any person to be a “dependant” they must have been “wholly or substantially maintained” by the deceased person at the date of the deceased person’s death.

    We recommend that you call Kylie Shaw from our contested estate team in QLD on (07) 3229 4448.

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