Grounds For Contesting A Will In Australia

This article outlines the grounds for contesting a will in Australia. There are legislative provisions in each state and territory to allow a claimant to dispute a will through a claim against the deceased estate. This provision is limited to eligible parties who have appropriate and sufficient grounds to make a claim within the relevant time limit. A claimant must demonstrate that the testator had a moral duty to make provision for them and that they are in need of that type of financial support.

What Does Contesting A Will Mean?

A will is disputed either through a challenge to its validity or through a contest of the testator’s last wishes contained in the will. Contesting a will is warranted if a testator unjustly excluded a person from their will, or made a less than adequate provision for them. A person contesting a will does so through a claim, often called a Family Provision Claim, to the local Supreme Court. The court is empowered to redistribute the deceased estate to benefit the claimant if there are sufficient grounds for contesting the will.

Grounds For Contesting A Will In Australia

Anyone considering making a claim needs to check if they have sufficient grounds for contesting a will in Australia. They should ask themselves a series of questions:

1. Are they an “eligible person” as defined by relevant succession legislation?
2. Has the testator failed to make fair provision for them?
3. Do they have a legitimate financial need for provision from the deceased estate?
4. Is there adequate time within the statutory time limits? Or do they have sufficient justification for a late application?

Grounds For Contesting A Will: Eligibility

Only an eligible person has grounds for contesting a will in Australia. Eligibility is established by succession legislation in each jurisdiction, so the list of eligible people differs according to location. There are some shared eligibility principles, namely that a de facto or married spouse and a dependent child always has a right to contest the deceased’s will. The other statutory categories often relate to characteristics of kinship or dependence. A claimant needs to consult a solicitor to discover if they fit into one of the categories of eligibility.

Grounds For Contesting A Will: Inadequate Provision

It is essential for anyone contesting a will to be able to establish that the testator had a responsibility to provide for them in their will. This moral responsibility is usually established through kinship (ie the claimant is a spouse or child of the deceased) or dependence (the testator has previously maintained the claimant). Not only does the testator have a duty to provide for the claimant, but they are also required to make provision in an “adequate” amount given the size of the estate and the claimant’s financial needs. For instance, if a testator left a sizable estate but only made a minimal bequest to a dependent child, that child has grounds for contesting a will.

Grounds For Contesting A Will: Financial Need

A claimant must demonstrate to the court that they are entitled to financial support from the testator and that their circumstances mean that they have a need of financial support. The claimant needs to proffer evidence to the court of their salary and assets, as well as other sources of income and support. A claimant who is easily able to pay their bills and maintain their lifestyle is probably not in need of financial assistance from the deceased estate. On the other hand, a claimant who has struggled financially and relied on the support of the deceased to manage their affairs has more cause to make a claim.  Another factor that is relevant to the claimant’s financial circumstances is whether the claimant suffers from any conditions that can adversely affect their capacity to earn income or increase their basic costs of living. For instance, if the claimant has an intellectual, mental or physical disability that affects their ability to retain employment, that would demonstrate financial need and constitute grounds for contesting a will in Australia.

The court must be convinced that the claimant’s need is greater than the existing beneficiaries who would be disadvantaged by a redistribution, or that a provision to the claimant would not adversely affect the other beneficiaries.

Time Limits

Even if a claimant has grounds for contesting a will, they can only do so within set time frames. These deadlines vary according to where the deceased estate is located, from three months in Tasmania to twelve months in New South Wales. A claimant may be able to lodge a claim after the deadline if the court finds the claimant’s reasons for the late application are justified.

It can be difficult to know whether you have a good case for a claim against a deceased estate. The contested wills team at Armstrong Legal can help you weigh your options and point out the most compelling grounds for contesting a will in your particular circumstances. Please phone 1300 038 223 to discuss your legal needs or make an appointment to talk to our experienced team.