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Can a Beneficiary Contest a Will?

A will is a written account of a testator’s wishes for the distribution of their property after their death. Most people assume that they can bestow their estate in any manner that they choose, and are surprised to discover that in Australia there are legal principles that allow close relations and dependents to contest the distribution of assets in a will. A beneficiary can contest a will and request a greater share of the estate, and a non beneficiary can contest a will to seek to become a beneficiary. The basis of this claim is that the person contesting the will has been left without adequate financial support.

Contesting a Will vs Challenging a Will

Challenging a will occurs when someone asserts that a will has not been validly made, or has been superseded by a more recent will. A will may, for instance, be challenged when someone has concerns about the testamentary capacity of the deceased, or the will has not been properly signed and witnessed. This is different from contesting a will, which occurs when the will itself is perfectly valid, but one or more people consider that they should receive a greater share of the estate.

Who Can Contest a Will?

Only an eligible person can contest a will in Australia. Each state and territory has different definitions of an eligible person, but a few general rules can be identified: for instance, as a general rule, siblings of a deceased are not eligible to contest a will unless they are also a dependent of the testator. In some jurisdictions, grandchildren are not eligible to contest a will, but in other jurisdictions, grandchildren have automatic standing to do so. In every jurisdiction a spouse (including a de facto partner), and a child (including an adopted and step-child), have automatic standing to contest an estate if they believe that the testator has not made adequate provision for them. In addition, any person who is financially dependent upon the testator, including a sibling, grandchild or friend, may be considered an eligible person to contest a will. In fact, it may come as a considerable surprise to many people to learn that in most jurisdictions a former spouse has standing to contest a will.

What Factors Are Relevant to Contesting a Will?

A claim to entitlement under a will is evaluated based on the size of the estate and whether adequate provision has been made to the beneficiary or dependent. Unfortunately, adequate provision is a subjective concept that differs according to the circumstances of each case, making it hard to define. If a beneficiary received a small legacy from a large estate, there is a basis for the court to determine whether adequate provision required a larger proportion. The court will consider any relevant factors in relation to a contestation of the will, including the financial circumstances of the beneficiaries and other claimants, the claimant’s relationship with the testator, and any promises that the deceased might have made to the claimant. Also considered is the extent that the claimant supported the deceased prior to their death or contributed materially to the assets of the estate.

When Can a Beneficiary Contest a Will?

Time limits apply to contesting an estate, and they differ across Australia. For instance, in New South Wales a claim must be made within twelve months of the date of death of the testator, in Victoria a claim must be made within six months, and in Queensland an individual has nine months to file a claim in court, but must notify the executor of their intention to claim within six months. The complexity of estate law, and the variation in rules across the states, makes it advisable to consult a solicitor experienced in estate law in the relevant state.

Can You Stop a Will Being Contested?

It is important to understand that there is no fool-proof way to avoid having a will contested in Australia because the law in each state and territory makes specific provision for an eligible person to seek a greater proportion of an estate. Despite what is sometimes depicted on television, it is not possible to declare that a child is disinherited and simply change a will accordingly: a child will always have the potential to contest the estate after the testator has died. It is also not possible in Australia to include a smaller provision for a beneficiary on the condition that they do not contest the estate for a larger proportion.

However, a solicitor can carefully draft a will to show that consideration was given to the needs of each dependent by the testator. A will can also include a detailed explanation of why an estate has been distributed in a certain way, and this may prove compelling to a court during a contestation claim. A solicitor can provide advice about steps that can be taken during the testator’s lifetime to help ensure that an estate is distributed in a certain way, such as gifting some assets before a testator’s death.

If you have any questions relating to wills and estates, please call Armstrong Legal on 1300 038 223 or send us an email to make an appointment.

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.

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