How To Stop Someone Contesting a Will (ACT)
Most people assume that when they make a will, they have the final say on what happens to their estate. On the contrary, the law in the Australian Capital Territory provides facility for a will to be contested or challenged by eligible individuals. In fact, it is relatively common for wills to be disputed in Australia, typically through a Family Provision Claim, and solicitors are often asked how to stop someone contesting a will. There is no way to altogether stop someone contesting a will, but there are ways to reduce the grounds upon which a will could potentially be disputed and to arrange assets in a way that removes them from a deceased estate.
Contesting A Will In The ACT
Contesting a will must not be confused with challenging a will. A will is legally challenged on the ground that the document is invalid; a will is contested on the ground that someone has not received sufficient provision from the testator. A contest will only be successful if the claimant can prove that the deceased had a moral obligation to provide for their financial needs. Consequently, the most important factors in a claim are the relationship between the claimant and the deceased, and the financial circumstances of the claimant. The Supreme Court will consider this evidence in light of the provisions that the will makes for all the beneficiaries, and ask what a reasonably minded testator would do in the same situation.
Who Can Contest A Will In The ACT?
Only someone with a personal or familial relationship to the deceased is eligible to contest a will. This typically means the close relatives of the testator, including their spouse and offspring. In the ACT, the Family Provision Act 1969 limits the persons who can contest a will to the following list:
- The former or current domestic partner of the deceased (if the relationship was of a duration longer than two years), or a partner who shares a child with the deceased.
- The deceased’s spouse, and anyone who was in a domestic relationship with the deceased before their death.
- A biological or legally adopted child of the deceased.
- A grandchild, stepchild, or parent of the testator, if the testator was financially supporting them before death.
Time limits apply to stop someone contesting a will many years after the testator passes away. A claimant can only file a claim in the six months following the Grant of Probate unless the court hears a compelling argument for a late application.
How To Minimise The Likelihood of Someone Contesting A Will
The simplest way to minimise the chances of contestation is for the testator to actually make adequate provision for their immediate family and dependents. Even if a testator is no longer close to a family member, they should take a more pragmatic view, with the knowledge that if a claim is later filed, the court will ask whether or not the actions of the testator reflect a reasonable approach to the distribution of the estate. If a testator intends to make small or no provision for a close relative, they may like to provide a written justification of the provisions in the will, outlining how moral obligation and the needs of the beneficiaries were considered in the making of the provisions. The court will consider these justifications in their deliberations in the event that the will is contested.
If the testator is determined to leave a close relative out of their will, then a solicitor can assist the testator to reduce the number and value of the assets in the deceased estate. A testator with a life insurance or superannuation policy can make a binding nomination so that the payout is made directly to their preferred beneficiary and the value of the policies are never included in the deceased estate.
Another approach is to make sure that all property and bank accounts are jointly held with the intended recipient of the asset, so that upon the testator’s death, the asset will transfer automatically to the surviving party. It is also possible to decrease the value of a deceased estate through outright gift and donation. In most jurisdictions, including the ACT, this method will ensure that the assets will not form part of the estate for redistribution. It should be noted that adopting this approach may have a negative impact on the testator’s income support benefits and taxation.
If you have concerns about the contestability of your will, the first step is to contact an experienced wills and estates solicitor. Armstrong Legal can instruct you on the best methods of how to stop someone contesting a will in the ACT. For further information on contesting wills, or any other aspect of probate and testamentary law, please call our expert team on 1300 038 223, or email for an appointment.