Disputing a Will (ACT)
It is not unusual for a family member of a deceased to consider disputing a will if they think that the will is invalid or that the testator has not made adequate provision for them. In the Australian Capital Territory, there are several methods of disputing a will, which is utilised in different circumstances. The first way that a person can dispute a will is through challenging the validity of the document itself. The second way is through contesting the provisions of a valid will. This article outlines the process of disputing a will through contest or challenge in the ACT.
Disputing the validity of a Will ACT
Disputing a will in the ACT is only possible if the testator owned real estate in the ACT, or resided in the ACT when they died. An eligible person can challenge the validity of a will on the basis that the document was not drafted in adherence to the legal formalities. For example, if the will is not signed by the testator, or witnessed by two independent parties, then there are grounds to challenge the will. It is important to note, however, that the courts may still validate an “informal” will if the testator’s wishes can be understood.
A more serious challenge can be mounted if there is evidence that the testator lacked the testamentary capacity necessary to make a will. There are other grounds for disputing the validity of a will, such as if a more recent will has emerged, or if there was undue influence, fraud or forgery in the creation of the will.
How is a Will Challenged?
The first step in disputing a will in the ACT is to check whether the Supreme Court has already issued a Grant of Probate. If there is not already a grant on file, the claimant should file a Probate Caveat to prevent the court issuing a grant until the parties reach an agreement or the courts make a ruling on the disputed estate. A challenge can be filed against a will at any point but the courts are more likely to deny a challenge if the estate has already been distributed.
Disputing the Provisions of a Will
Even a valid will can be disputed if an eligible person feels that they have not been adequately provided for in the will. A person disputing a will through a Family Provision Claim must demonstrate that the testator had a moral responsibility to provide for their financial needs. The court will assess the financial circumstances of all the beneficiaries, with particular attention to the needs of the claimant, and the nature of the relationship between the testator and all of the beneficiaries. The court will attempt to determine what a “reasonably minded testator” would do in the same circumstances, and make appropriate orders based on this determination.
Time Limit for Contesting a Will
There is a statutory time limit that relates to contesting a will in the ACT. A claim can usually only be filed in the six months after probate is granted. The courts may hear a claim after that time limit if the claimant can prove that there is sufficient cause for the late application.
Disputing a Will in the ACT: Who is Eligible?
Not everyone can dispute a will. The only people eligible to do so are those related to the deceased through family ties or personal relationship. For instance, any beneficiary of a current or previous will may challenge the will, and anyone who would inherit if the estate was intestate is also eligible to challenge the validity of the will.
Typically the people who are eligible to contest the provisions of a will are the spouse and children of the testator and other direct relatives. The Family Provision Act 1969 stipulates that the people who can contest a will in the ACT are:
- The domestic partner or former partner of the deceased (if they were in a relationship for at least two years), or a partner who is also the parent of the deceased’s child.
- The spouse of the deceased, or someone in a domestic relationship with the deceased at the time of their death.
- A child (biological or adopted) of the deceased.
- A stepchild, grandchild, or parent of the testator, if the deceased was financially supporting them at the time of death.
Who Pays the Costs of Disputing a Will?
In the ACT, the court decides who pays the costs associated with disputing a will. The standard practice is for the claimant to be awarded costs if the court agrees they should receive a greater provision, and if the claim is unsuccessful, the claimant must reimburse the estate for the cost of defending the claim.
For advice on disputing a will in the ACT through challenge or contest, please contact our experienced contested wills team at Armstrong Legal on 1300 038 223 or email our team to make an appointment.