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How to Stop Someone Contesting a Will in Australia

A will is a vitally important document that allows you to communicate wishes for your estate after your death, but it is not inviolate as it can be challenged or contested. In fact, some estimates suggest that up to half of all wills in Australia are contested, usually by family members who believe that the deceased did not adequately provide for them. Given how common it is for a will to be contested, people regularly ask solicitors how to stop someone contesting a will in Australia. The answer to this question, as this article will explore, is that it is unfortunately not possible to stop someone contesting a will in Australia. However, it is possible to take steps to make it less likely for a will to be contested, and/or arrange assets so that they are not included in the deceased estate.

In What Circumstances Can a Will be Contested?

Contesting a will is different from challenging a will, which occurs when someone suggests that the will is not valid because it has not been executed according to formal requirements. Contesting a will in Australia, by contrast, occurs when someone asserts that they have not received adequate provision in the will.

To successfully contest a will, a person must demonstrate financial need, and establish that in light of this need, the deceased should have made greater provision for them. As a result, the applicant’s financial situation is of particular importance to the application, as is his or her relationship with the deceased. The court will also consider the moral obligation of the deceased to support the applicant, and the provision made for other beneficiaries in the will.  The ultimate test used by the court is what a “reasonably minded testator” would do.

Who is Eligible to Contest a Will in Australia?

Every Australian state and territory has legislation that allows certain people to contest a will, but the criteria for eligibility differ across jurisdictions. For instance, in some locations, a grandchild is automatically eligible to contest a will, while in other jurisdictions a grandchild can only contest a will if they have previously been financially dependent upon the testator.

There are a few shared commonalities across jurisdictions, such as the fact that a spouse and child of the deceased can always contest a will. Another similarity is that if someone is already a beneficiary, they can still contest the will in an effort to receive a larger percentage of the estate.

How Do You Minimise the Chances of Someone Contesting a Will in Australia?

The most straightforward way to minimise the prospect of someone contesting your will is to make adequate provision for anyone who might otherwise successfully contest the will. It is not necessary to make equal provision for all beneficiaries, only to do what a reasonable testator would do in the circumstances. It is also worthwhile including a written account of the consideration given to the needs of each beneficiary, and a justification of the allocation based on their current and future requirements. The true test is whether you have made reasonable provision for the child or family member, taking into account all the circumstances.

Of course, this approach may not work for every testator. Solicitors are sometimes asked to draft wills that completely exclude an individual who would have standing to contest the will. In this case, there are steps that can be taken during the testator’s lifetime to reduce the number and/or value of assets in the deceased estate.

One way this can be done is to nominate a beneficiary for superannuation and life insurance payouts. Where there is a binding nomination in place, the payout is simply made to the nominee, and the policies never become part of the deceased estate.

Another strategy is to ensure that property is owned jointly with the person who is the intended beneficiary of that asset. In this case, when one joint owner dies, ownership of the asset will revert to the surviving owner and will not be part of the deceased estate. This approach also works for jointly held bank accounts. It is very important to flag that the concept of notional estate in New South Wales interferes with the simple transfer of ownership in the case of jointly owned assets, and as a result you should consult a solicitor for matters relating to estates in that jurisdiction.

Perhaps the most effective way to reduce assets in a deceased estate is to gift the asset during the testator’s lifetime. This is certainly effective in that, in most jurisdictions, the asset will then not form part of the deceased estate, and therefore cannot be redistributed if the will is successfully contested. However, this approach should be used with caution as it could negatively impact the testator’s taxation or income support benefits.

For more information on contesting wills, or any other legal matter, 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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