Speak Directly To a Lawyer Now

1300 038 223
Open 7am - Midnight, 7 days
Or have our lawyers call you:
  • This field is for validation purposes and should be left unchanged.

5 Reasons Your Will Might Be Contested

A dispute over a deceased estate can be disastrous for families. Such a dispute can lead to a long and bitter legal battle that depletes the estate and divides families. However, there are steps that a testator can take to anticipate and avoid issues that may prompt someone to contest their will. This article points out warning signs that a testator should watch for when estate planning.

Reason #1 Will Might Be Contested: Second Marriages And Blended Families

Broadly speaking, estate law assumes that the current spouse of the deceased will be the primary beneficiary of their estate, with their children as secondary beneficiaries. Intestacy law in each jurisdiction reflects this presumption, as the spouse and the children of the deceased are the main beneficiaries when there is no valid will.

As such, a testator should be aware that there is a greater likelihood of future legal dispute if they have children from one relationship and later remarry. In effect, the act of remarriage serves to disinherit, at least to some extent, the children of the deceased. The rules of intestacy in some jurisdictions acknowledge this problem and make special provisions for the children from a previous relationship.

When a testator does leave a will that leaves everything to their new spouse, the deceased’s children might decide to contest the will. Under succession law, these children would stand a good chance of succeeding in a claim against the deceased estate. A specialist solicitor can help a testator draft a will to reduce the likelihood that their will might be contested.

Reason # 2: Sibling Rivalry

Your family dynamic may mean that your will is more likely to be contested.

When a testator’s children have a history of sibling rivalry, the deceased estate often becomes the focus of this tension. The combination of grief and long-standing resentments can culminate in drawn-out court battles.

A testator can address this tension by leaving a fair distribution to their children. The testator can also provide a clear explanation for the reasoning behind the bequests. It is important to appreciate that fair does not necessarily mean equal. Rather, it should reflect a reasonable consideration of the financial needs of each child (see # 4 below for more on this topic).

In this case, it is also advisable to appoint an impartial executor to handle the estate administration. A family friend, or better yet, a professional executor can mediate rivalry between the beneficiaries while following the testator’s wishes.

Reason # 3 Will Might Be Contested: Early Inheritance

A will might be contested if it comes to light that the testator has given certain family members an “early inheritance”. It is quite common for an ageing parent to provide financial assistance to an adult child to buy a first home or start a business. When a parent provides a significant financial gift during their life to one child but not another, this can cause animosity when it comes to the final distribution of the deceased’s assets.

A testator can address this situation by making a will that documents these large gifts and adjusts the inheritances to provide a fair distribution between the testator’s children. However, as noted in item # 2 and discussed in detail in item # 4, fair distribution is not the same as equal distribution.

Reason # 4 Will Might Be Contested: Fairness And Financial Need

It is essential to underline the use of the word fair in terms of the distribution between beneficiaries. A will might be contested because the testator divided the estate equally amongst the deceased’s family members. Providing equal shares might seem like a reasonable approach, as it does not single out one relative for special treatment. Actually, under succession law, a beneficiary in dire financial circumstances can make a claim against the deceased estate for a greater portion than a family member who is more financially secure. For instance, in New South Wales, an eligible person under the Succession Act 2006 can make a Family Provision Claim to the Supreme Court. A testator must draft their will with an awareness of the financial needs of immediate family members and dependents.

Reason # 5: Disinheriting Eligible Claimants

One way to almost guarantee that a will might be contested is to disinherit someone who is entitled to provision from the deceased estate.

While a testator can legally exclude anyone they want from their will, an eligible person can make a legal claim for adequate provision. Even if a testator is estranged from a child or dependent, it is better to provide a proper bequest to them rather than putting the estate through the inevitable trouble and expense of a court proceeding. A solicitor can help draft a well crafted, valid will that is less likely to be contested.

The contested wills team at Armstrong Legal can help if you want to reduce the possibility of your will being contested. The team can provide advice on how to prepare and update a will to protect your chosen beneficiaries.

Dr Nicola Bowes

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.

Legal Hotline
Open 7am - Midnight, 7 Days
Call 1300 038 223