Grounds For Contesting A Will (ACT) | Armstrong Legal

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This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

Grounds For Contesting A Will (ACT)


In the Australian Capital Territory, an eligible party can dispute a testator’s last wishes if they have grounds for contesting the will under the Family Provision Act 1969. Essentially, a claimant must prove that the testator had a moral duty to financially provide for them and failed to do so in their will. Even so, a claim will only be successful if the case meets certain additional criteria: first, that there is sufficient value in the estate; second, that the claimant is in financial need, and finally, that the relationship between the claimant and testator warrants provision. This article outlines the grounds for contesting a will in the ACT.

Jurisdiction

A Family Provision Claim can only be made to the Supreme Court of the ACT if the deceased was the owner of real property in the state, or resided in the ACT before their death.

Grounds For Contesting A Will: Eligibility

Contesting a will in the ACT is reserved for those who have a statutory right to dispute the will of their family member. A spouse, de facto partner, and even a former domestic partner of the deceased have an unqualified entitlement to dispute the will. The same right is extended to any biological or adopted child of the deceased.

There is also a conditional allowance for other categories of people to contest the will. A stepchild, grandchild or parent of the deceased can make a claim if the testator was financially supporting them before their death. Additionally, a grandchild can apply if their parent (the child of the testator) passed away before the testator, or if the grandchild’s parent/s were not providing them with financial support. A parent of the testator may also contest the will if their child died without a spouse or child.

Adequate Provision

Every claim against a deceased estate is assessed against several criteria. Most importantly, the court considers whether the testator was morally obligated to make adequate provision for the claimant and failed to do so in their will. The statutory definition of adequate provision under succession legislation in the ACT is “proper maintenance, education or advancement in life”. If the court finds that the claim is valid, it can redistribute the estate to make provision for the claimant.

Of course, the amount of provision that can be made to any one claimant must be in proportion to the size of the deceased estate itself after all of the debts and liabilities have been paid. In increasing the provision for one claimant, the court may decrease the provision for another beneficiary. On occasion, otherwise deserving claimants will not receive provision because the estate is exhausted by Family Court Orders, or because heirs inherited major assets outside of the will (for instance, through joint ownership of real estate).

Grounds For Contesting A Will In The ACT

The court considers a number of additional criteria set out in the Family Provision Act 1969 to determine whether a claimant has grounds for contesting a will.

The closeness of the relationship between the testator and the claimant is a relevant consideration. For instance, a spouse or child has more grounds for contesting a will than a grandchild or parent. The length of the relationship will also have an impact on the relative strength of the claim.

The way that the claimant behaved towards the testator may impact the success of their claim. Any financial or other contribution that the claimant made towards the estate or to the welfare of the deceased or their family may increase the likelihood that the claim will be successful. For instance, if an adult child acted as a carer for their parent regularly before they passed away, then they can claim that they significantly contributed to the welfare of the deceased.

One of the most important grounds for contesting a will in the ACT is financial need. The court will note the financial circumstances of the claimant, including income, assets and any resources that the claimant can rely on in the future. It is particularly important that a claimant highlight any factors that impact on their ability to earn income, such as physical or intellectual disability. Other factors that affect the claimant’s cost of living, such as whether they have dependents, will also impact on the claim. This is an essential component of the claim as an applicant who is financially independent is unlikely to win a redistribution of an estate where there are entitled and needful beneficiaries.

Each Family Provision Claim has unique strengths and weaknesses, but the contested wills team at Armstrong Legal can counsel you on whether you have strong grounds for contesting a will in the ACT based on recent court decisions in that jurisdiction. Please telephone our helpful team on 1300 038 223 for more information or make an appointment to discuss your case.

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