Contesting A Will
In the Australian Capital Territory (ACT), eligible persons can Contest a Will and make what is called a Family Provision claim if they have been left without adequate provision from a deceased estate.
Our team practices exclusively in Wills and Estates Law and is here to guide you through the process to achieve the best possible outcome. If you are considering contesting a will, or if you have a question about wills and estates, we encourage you to call us on 1300 038 223 for a free initial case assessment.
Grounds for contesting a will in the ACT
Contesting a will is generally synonymous with making a Family Provision Claim. In the ACT you may contest a will if:
- You are an eligible person;
- You believe you have not been adequately provided for.
In determining whether there has been adequate provision for a person, the court may consider their financial position, their relationship with the deceased, the size of the estate and the deceased’s relationship with other persons who are eligible to make a claim. Adequate provision is complex and difficult to define as it varies with every unique case.
How to contest a will in the ACT
A Family Provision claim can only be made in Australian Capital Territory if either:
- There is real estate owned by the deceased in the ACT; and/or
- The deceased lived in the ACT at the date of his or her death.
If you are thinking of making a claim, you should act immediately. It is possible the estate property may be sold or transferred and estate funds may be spent. If you would like to discuss making a claim, contact our contested wills lawyers. .
Who is an eligible applicant?
In the ACT there are several categories of persons who are eligible to make a Family Provision Claim. The following persons are eligible:
- The deceased’s partner;
- Someone who was in a domestic relationship with the deceased;
- The deceased’s child;
- A stepchild who was being maintained by the deceased immediately before the deceased died;
- The deceased’s grandchild, if they were being maintained by the deceased immediately before the deceased died or their parent (who was the deceased’s child) died before the deceased;
- The deceased’s parent provided the deceased maintained them before the deceased died or the deceased is not survived by a partner or children.
The deceased’s partner means their spouse, domestic partner for two years continuously or produced a child with the deceased. In the ACT, a former partner is not expressly listed as a person eligible to make an application to the court for family provision. However, a former partner may be eligible if they were the deceased’s domestic partner for two years continuously or if they had a child with the deceased.
A domestic relationship has been defined in the legislation to mean a relationship between two adults where one adult gives some sort of commitment, whether financial or personal, and domestic support for the benefit of the other. It does not include marriage and the two adults do not need to live in the same household. However, if the adults received payment or reward, this cannot be classified as a domestic relationship.
Time limits for contesting a will
In the ACT, there is a time limit for contesting a will. The legislation states that you must bring a claim within six months from the date that probate or administration is granted.
There are some exceptions to this time limit and in certain cases, out of time applications can be made. If an application for family provision is made more than six months after the date of probate or administration, the claimant will need to show the court that they have ‘sufficient cause’. The court has discretion to grant an extension of time if the claimant can show that there is sufficient cause for making a late application. The court must be provided with ‘sufficient justification or excuse’ or ‘sufficient explanation.
We encourage you to make contact with our team on 1300 038 223 for a free case assessment even if you have exceeded the 12-month time limit.
How do I get a copy of the will?
Close family members often do not have access to the will and therefore are unsure what provision has been made for them. If you are in this situation, the first thing you should do is contact the executor or the solicitor acting for the estate. You can also contact the Supreme Court of the ACT and find out if there has been a grant of probate or an application for probate. If probate has been granted, you can make an application to the Supreme Court for a copy of the will.
ACT legislation does not set out who is entitled to a copy of a will. You should consult with a lawyer if you are having trouble obtaining a copy of the will, as your lawyer can negotiate with the Executor of the estate for a resolution and if unsuccessful, begin court proceedings.
In the event the deceased left no will (died intestate), an application for letters of administration must be made.
In the ACT, the Judge has discretion regarding legal costs in family provision cases.
If an applicant is successful and receives an order for provision, usually the estate will pay the applicant’s ordinary costs. However if an applicant receives no order for provision, the court may order the applicant to pay the defendant’s costs.
We recommend that you seek advice from a lawyer who specialises in this area of law. At Armstrong Legal we offer a variety of costs agreements in these matters, including “No Win No Fee” costs agreements.
Dying without a will
When a person dies without a will, they are said to have died Intestate. In circumstances, where a person does not have a will or the will cannot be found, an Administrator is appointed by the court to distribute the estate of the deceased according to the statutory order or intestacy rules. When an administrator is appointed, the court makes a grant of what is called letters of administration.
a grant of letters of administration enables the person appointed as administrator to act as the representative of the estate. Once a letter of administration is granted the administrator distributes property in the following order:
- Spouse or de facto spouse and no children;
- Spouse or de facto spouse and children;
- Children only;
- Other relatives; and
- No relatives.
Contesting a will is different from challenging a will. A person challenges a will when they have reason to believe the will is not legally valid. A person may be able to challenge the validity of a will if they think:
- That the deceased did not have the mental capacity to make a will;
- That the Will was forged;
- That the deceased was unduly influenced in making the Will; or
- That there was fraud involved.
What does the court consider when deciding a claim?
In the ACT, the court may consider various matters when an applicant makes a Family Provision Claim. In determining whether to order provision for the applicant the court may consider:
- The relationship between the deceased and the applicant, if any, including the nature and duration;
- The obligations or responsibilities the deceased had, if any, to the applicant or any beneficiaries of the estate;
- The nature and extent of the deceased’s estate including property which is notional estate and any estate liabilities;
- The applicant’s financial resources (including earning capacity) and needs (both present and future) and those of any other applicant or beneficiary;
- The financial circumstances of any other person cohabiting with the applicant;
- Any disability, whether physical, intellectual or mental, of the applicant, any other applicant or beneficiary at the time of the hearing;
- The applicant’s age at the time the application is being heard;
- The applicant’s contribution (if any) to the deceased’s welfare or to the acquisition, conservation and improvement of the deceased’s estate, for which adequate consideration was not received by the applicant;
- Any provision made by the deceased to the applicant during his/her lifetime or from the deceased’s estate;
- Evidence of the deceased’s testamentary intentions, including evidence of any statements made by the deceased;
- Whether the deceased maintained the applicant, wholly or partly, before his/her death and the extent to and basis on which the deceased did so (if the court considers it relevant);
- Whether anyone else is liable to support the applicant;
- The applicant’s character and conduct before and after the deceased’s death;
- The conduct of any other person before and after the deceased’s death;
- Any Aboriginal or Torres Strait Islander customary law that is relevant;
- Any other matter that the court considers relevant. This may include matters in existence at the time the deceased died or at the time of the hearing.
What if I don’t live in the ACT?
The place where you live does not affect whether you can bring a claim in the ACT. What is relevant is whether the deceased lived or owned assets in the ACT. If the deceased lived and owned assets in the ACT, a claim can be made in the ACT even if you don’t live in the ACT. You can make a claim in the ACT, even if you live overseas or in another state or territory. This occurs commonly. However, it is important that you have a lawyer acting for you who is experienced in the state where you are making a claim.
Can grandchildren contest a will?
Under ACT’s Family Provision Act grandchildren are entitled to make an application for further provisions out of an estate provided that:
- Their parent (the deceased’s child) predeceased their grandparent; or
- The grandchild was not being maintained by one, or either, of their parents immediately before the death of their grandparent.
Essentially, in order for a grandchild to be successful in a claim for further provisions from the estate the court must be satisfied that their relationship to the deceased was more akin to that of a parent/child relationship rather than a grandchild/grandparent relationship. In this situation, the grandparents assume an ‘in loco parentis’ role in the lives of their grandchildren – meaning literally ‘in the place of a parent’.
The following are factors which may suggest a strong claim:
- The grandchild’s continuing residence with their grandparent(s)
- The grandparent(s) taking direct responsibility for the grandchild’s support and welfare
- The grandparent taking direct responsibility to support the grandchild by being directly responsible financially or emotionally
Whilst a grandchild is not typically considered to be an ‘object of testamentary consideration’, grandchildren are certainly eligible for further provisions if their relationship to their deceased grandparent went beyond a typical grandchild/grandparent relationship.
Can a niece or nephew contest a will?
Whilst nieces/nephews are not expressly listed as being eligible to make an application under ACT’s Family Provision Act, they may nevertheless be eligible to challenge the estate if:
- The niece/nephew was in a ‘domestic relationship’ with their uncle/aunt for two continuous years; and
- The uncle/aunt did not make adequate provision for the niece/nephew’s maintenance, education or advancement in life, whether by virtue of a will, or in the case of intestacy, through the operation of the laws of intestacy.
A domestic relationship is a relationship of either dependence or inter-dependence. This means that c claim can be made if the uncle or aunt:
- Supported the niece/nephew personally, financially or in a domestic manner for the material benefit of the niece/nephew; or
- Was supported by the niece/nephew personally, financially or in a domestic manner for the material benefit of the uncle/aunt; and
- The above support was done without fee or reward, and not on behalf of another organization
If you require legal assistance, advice or representation in a contested wills matter or in any other legal matter, please contact Armstrong Legal.