Sydney Office

Level 35
201 Elizabeth Street
Sydney NSW 2000

Melbourne Office

Level 13
575 Bourke Street
Melbourne VIC 3000

Brisbane Office

Level 5
231 North Quay
Brisbane QLD 4000

Canberra Office

Level 5
1 Farrell Place
Canberra ACT 2601

Perth Office

Level 10
111 St Georges Terrace
Perth WA 6000

Armstrong Legal Logo

Privacy Policy  |  Terms & Conditions

Copyright © 2019 Armstrong Legal. All rights reserved.

Phone 1300 168 676

How to stop someone contesting a will?

How to stop someone contesting a will?
In all Australian states and territories, Family Provision legislation enables certain eligible people to contest a will (even if that will is properly signed, witnessed, and represents the deceased person’s final wishes). There is almost no guarantee that an eligible person (for example, a child or spouse of a deceased person) will not have the right to contest a will.

Although certain eligible people are entitled to make a claim on a deceased person’s estate, whether they are likely to succeed is a separate question. Success depends on a number of factors including the size of the estate, the claimant’s financial needs, the relationship between the claimant and the deceased person, and the competing claims on the estate.

The only definite way of preventing an eligible person from contesting a will by a Family Provision application is to obtain Court approval to release an eligible person’s right to make such a claim. However, this avenue is not available in all states. New South Wales law allows the Court to approve of a release in relation to the whole or any part of the estate or notional estate of a person.

Sometimes, people will enter into a deed wherein all parties agree to submit to the Court to seek approval of a release, if necessary. It is important to keep in mind that the deed alone does not constitute a release. For the release to be effective, it must be approved by the Court. In considering whether to grant the release, the Court will take into account a range of factors, including whether it was prudent for the releasing person to make the release, whether the provisions of the release were fair and reasonable at the time, and whether the releasing party has taken independent advice and given due consideration to the advice. The Court might even find that, although the deed was sensible at the time, circumstances have changed such that Court approval of a release would not now be appropriate.

Since the wills and estates laws vary from state to state, and the possibility of Court approval may not be available in your state, please call us for a free initial assessment of your situation on 1300 168 676.

Written by Alun Hill on May 30, 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

Leave a Reply

Your email address will not be published. Required fields are marked *

Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100