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Can A Beneficiary Contest A Will In The ACT

In the Australian Capital Territory, an eligible beneficiary can legally contest a will through a Family Provision Claim if they had a close personal or familial connection to the deceased. Claims should only be filed in this jurisdiction if the deceased resided in the ACT before their death or owned property in the Territory. This article outlines the criteria of eligibility for Family Provision Claims in the ACT, the relevant time limits for such a claim, and the Supreme Court’s typical evaluation methods when assessing these claims.

Is Contesting a Will The Same As Challenging A Will?

As a general rule, a will is challenged when there are grounds to believe the document itself is invalid, out-dated, or created fraudulently. Challenges are often brought on the basis that the testator did not have sufficient testamentary capacity to draft a will or understand the implications of the legal document.

By contrast, a beneficiary contests a will when they have no issue with the validity of the will, but dispute the fairness of the provisions for the distribution of the deceased estate. A solicitor can advise a beneficiary on the type of dispute that is appropriate in the particular circumstances.

Who Can Contest A Will In The ACT?

A beneficiary must be an “eligible applicant” in order to contest the provisions of a will through a Family Provision Claim. According to the Family Provision Act 1969, only those who have a close connection to the deceased can contest a will. Eligible applicants include the deceased’s spouse, de facto or registered partner, and the deceased’s current or former domestic partner as long as they had been together for over two years or shared a child. A legal child of the deceased can make a claim against the estate, as can a grandchild, stepchild or parent of the testator if they were substantially dependent on the deceased before their death.

The Fallacy of Nominal Provision

On occasion, testators will include a small provision in their wills for a beneficiary with the intention that this small bequest will prevent the beneficiary from making a Family Provision Claim. This often reflects the mistaken belief that a beneficiary cannot contest a will if they receive any bequest, no matter how minimal. However, this belief is based on a faulty understanding of the law. In the ACT a beneficiary can contests a will on the basis that they have not received adequate provision under the terms of the will. The law makes provision for beneficiaries to claim a fair portion of the estate based on a number of factors, and the fact that a small provision is made for beneficiary does not in any way prevent that person from bringing a Family Provision Claim against the estate.

How Is A Claim Evaluated?

The courts will consider a number of factors in assessing a claim, particularly the financial circumstances of the claimant and any other beneficiaries. If the beneficiary has made contributions to the estate of the deceased (such as paying off a mortgage or growing a family business) then they may be entitled to a larger portion of the estate. The court will evaluate the relationship and type of support that has previously been enjoyed between the testator and the claimant, including any promises made to the claimant. Perhaps the most significant consideration is the financial needs of the claimant, and what a “reasonable” testator would do to make provision for the claimant. Other factors at play are the claimant’s health, age and usual standard of living.

Time Limits For A Beneficiary To Contest A Will

A beneficiary can only contest a will within certain time frames in the ACT. A claimant needs to send the executor of the estate written notification of the intention to claim before six months lapses from the date of the Grant of Probate. The courts will hear a claim after that deadline if there is a compelling reason for the delay, but the claim is less likely to be successful as the assets may have already been distributed.

Who Pays For Costs Associated With Contesting A Will?

In the ACT, the court chooses whether the beneficiary carries the costs associated with contesting a will. The typical practice is for the decision on costs to follow the verdict: if the beneficiary’s claim is successful, then their costs are usually covered by the estate, but if the court orders no further provision then the claimant can be forced to reimburse the estate for any costs associated with defending the estate.

The experienced contested wills team at Armstrong Legal can help any beneficiary contest a will in the ACT. If you need any assistance with lodging a claim or advice on any other aspect of probate law, please call 1300 038 223 or make an appointment via email.

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