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Every state and territory in Australia has family provision legislation which enables certain eligible persons to make claims for provision, or further provision, out of a deceased person’s estate. There are several reasons why someone may choose to contest a will. Below are just some of the reasons that people choose to contest.
Left out of a will
The most common reason that someone may choose to contest a will is that they are not named as a beneficiary. Quite often, children and even spouses are left out of wills and have no choice but to make a claim under family provision legislation to try to obtain provision out of the deceased’s estate.
It is important to remember that although someone is not left anything under a will, it does not guarantee a successful claim. What is adequate and inadequate provision will depend on the circumstances of each particular case. What is adequate for one person may be inadequate for another. In family provision claims the court will consider various factors, including the financial needs of the person making the claim, their relationship with the deceased, the size of the estate and the competing needs of the beneficiaries in the will.
The will makes inadequate provision
Sometimes a person will be named as a beneficiary in a will, but only receive a small amount of provision. We often hear about a person being left a nominal amount, such as $1,000.00 or $20,000.00 which will stop them from being able to contest the will. This does not stop the will from being contested. Instead, it is likely to encourage someone to contest the will and naming that person as a beneficiary, even for a nominal amount of money, maybe interpreted as an acknowledgement by the deceased that they were obligated to provide for that person.
There is no will
Many people in Australia die without leaving a valid will. When there is no valid will, a deceased person’s estate is distributed under the rules of intestacy, which sets a hierarchy of relatives who have varying entitlements to the estate.
In some cases, where there is no will, the rules of intestacy do not provide adequate provision for someone who the deceased should have provided for. Family provision legislation is that person’s only recourse to increase their entitlement.
It is important to keep your will up to date and it should be revised (or at least reviewed and confirmed) whenever you have undergone a significant life event, such as marriage, divorce or buying and selling major assets. However, as we all know, life gets in the way. Many people simply don’t have the time or push the idea to the back of the mind. This often results in a will that does not reflect the deceased’s intentions at the date of death. This comes about in three significant ways.
Firstly, family dynamics and relationships change. People separate. Children fall out with parents. People reconcile. Quite often, a will may be made which leaves out a person who has had a falling out with the deceased. They may have reconciled but the deceased failed to update their will and so that person is still left out of the will. Or the opposite may occur, where the deceased has fallen out with a person who is still a beneficiary under the will.
Secondly, the nature of people’s assets changes over time. They may sell assets such as property, shares and motor vehicles. They may change banks. Some wills provide specific gifts such as a particular piece of property or specific shares or money held with a specific bank. If those assets are not held by the deceased at the date of death then those specific gifts may fail. Based on the will, the deceased clearly wanted a certain person to receive a specific benefit under their will, however because the gift fails that person will receive nothing or their entitlement will be significantly reduced. That person may have to contest the will.
Thirdly, beneficiaries’ circumstances change. For example, a will may provide minimal or no provision to a child because that child is financially secure. But between the date of the will and the deceased’s death, that child’s circumstances may have worsened and they now have significant financial need. In those circumstances, the only recourse they may have is to contest the will.
People often complain about wills being unfair. For example, it is a commonly held belief that children should be treated equally, however, for various reasons, people favour some children over others in their wills. Or blended families, such as second or third spouses, result in children from previous relationships missing out altogether. Many people think that this is unfair, but the concept of fairness is subjective and will vary depending on which person you ask.
Unfairness is often cited as the reason for wanting to contest a will and it is certainly understandable. However, it is very important to understand that the law does not have a concept of fairness. And family provision claims are not decided on what is and isn’t fair. The court will look at whether a person received adequate provision under the will and whether provision, or further provision, should be made to them. Each case is different and will be decided on its own facts.
Let’s face it, legal action can be costly. When it comes to challenging the validity of a will (with claims such as lack of testamentary capacity or undue influence), the costs can be very high due to the need for expert evidence and the prolonged nature.
Conversely, family provision claims are often seen as cheaper and likely to resolve quickly than other forms of legal action. Armstrong Legal offers “No Win No Fee” representation for people who make family provision claims. Accordingly, contesting a will is often seen as the most cost-effective, or indeed the only affordable, course of action by many people.
All legal action has risk. No matter what the type of litigation, there is always the risk of losing. For many, family provision claims are seen as carrying less risk than other forms of legal action, such as challenging the validity of a will.
If any other above reasons apply to you, please click on the link below for the state where the deceased lived. There you will find some important information about contesting a will.
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Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100