Who Can Contest A Will? (ACT)
The Family Provision Act 1969 establishes who can contest a will in the Australian Capital Territory. Under that legislation, only select family members are able to make a claim against the deceased estate and some family members must also meet additional eligibility conditions before they can contest a will. This article outlines the categories of eligibility for contesting a will in the ACT.
Contesting A Will In The ACT
Succession law is structured around two rights which are complementary yet contradictory: a testator has the right to draft his or her will in any way they see fit, and yet their dependents have the right to dispute this distribution and to seek a Supreme Court order to overrule the wishes of the deceased.
Who Can Contest A Will In The ACT?
Only an eligible person can make a Family Provision Claim for a redistribution of the deceased estate in their favour. In the ACT, the list of eligible claimants is more limited than other jurisdictions in Australia. The Family Provision Act 1969 restricts eligibility to close family members, some of whom have outright entitlement and others who must prove additional eligibility factors, such as their financial dependence on the testator.
In the ACT, a partner has an unconditional right to dispute the will. The law considers a partner to be a natural heir and to have priority to inherit the assets of a relationship. A “partner” is defined as someone who was the spouse, civil partner or civil union partner of the deceased, a domestic partner who lived with the deceased for two continuous years, or who shared a child with the deceased.
Someone who does not fit into this definition of a partner may still be able to make a claim. The claimant would have to prove that they shared personal and financial interdependence with the deceased and that they domestically supported each other. The parties in this type of domestic relationship do not have to share a residence, but the relationship must not involve fee or reward or be engaged in out of charity.
Children Of The Deceased
A child (including an adult child) who has been left out of their parent’s deceased estate has the unconditional right to make a Family Provision Claim. Even if a child is left a small bequest in the will, the child can still contest the will if they feel that their bequest is insufficient for their needs. The definition of a “child” for the purpose of succession law in the ACT includes a biological child and a legally adopted child, but not a stepchild.
Who Else Can Contest A Will In The ACT?
A stepchild, grandchild and parent of the deceased have a conditional right to contest the will if they can establish other eligibility factors. These family members can make a Family Provision Claim in the ACT if the testator was providing financial support to them before they passed away.
This financial support must be substantial to count towards eligibility. The wording of the Family Provision Act 1969 specifies that the deceased person must have been “maintaining” the claimant before death. An occasional gift or small assistance does not rise to the standard of maintenance, but it would be persuasive if the claimant relied on the testator for their housing or other living essentials.
A parent of the deceased also has the right to contest their child’s will if their child died without partner or children. In the absence of these next of kin, the parent is considered the closest relative and entitled to inherit from their child’s deceased estate.
A grandchild may also be eligible if their parent (the child of the deceased) passed away before the testator. Alternatively, when a grandchild requires financial assistance and his or her parent/s do not provide support, their grandparent has a moral responsibility to make provision for them in their will.
While a prospective claimant might have eligibility under the Family Provision Act 1969, they should give consideration to whether they have a realistic chance of success. Just because a person is eligible does not mean that they have grounds to contest the will. The Court will evaluate the claim against a list of criteria, including:
- Whether the claimant received an adequate bequest in the will;
- The nature of the relationship between the claimant and the testator;
- The financial circumstances of the claimant;
- The claimant’s future financial prospects;
- The overall value of the deceased estate; and
- Whether the claimant made contributions to the estate, or provided care for the deceased or their family.
The contested wills team at Armstrong Legal can advise you whether you are eligible to make a Family Provision Claim. Please contact or telephone our team on 1300 038 223 to discuss who can contest a will in the ACT, or any other probate, testamentary or succession matter.