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Examples of Wills That Have Been Contested

A will is an important legal document. It sets out the wishes of the deceased as to the distribution of their assets. It is commonly thought that an individual can dispose of their assets as they see fit. In fact, there is legislation in every state that can be relied on to contest a will if a family member, or another individual, believes that the deceased has not made adequate provision for them. There are many example of wills that have been contested on this basis. State-based legislation can also be relied on to help an executor or beneficiary defend a will against a contest.

It is important to note that contesting a will is different from challenging a will. When a will is challenged, someone is arguing that the will is not legally valid. This may be because the deceased was not competent, or was placed under undue pressure at the time of making the will. There are a range of other reasons that a will might be challenged, including where the death was caused by a beneficiary of the will.

This is a complex area of law, and as such case studies can be helpful as example of wills that have been contested in Australia. However, as the law varies from state to state these examples are for general information purposes only.

Case Study 1: Will Contested by Estranged Daughter

Mary was the mother of two adult children, a son and daughter. She had been estranged from her daughter for over seven years before she died. Mary did not mention her daughter in her will at all, and left her entire estate to her son.

The daughter contested the will, claiming that her mother had a moral duty to provide for her, as she had significantly fewer financial resources than her brother, and suffered from a debilitating condition that made it difficult for her to find continuing employment. The daughter was awarded nearly half of her mother’s estate.

This example of a contested will demonstrates two significant points. First, that an individual may make a successful inheritance claim even if they are estranged from the testator. Second, that evidence of financial need is a significant factor in determining whether a will has made adequate provision for the children of the deceased, even adult children.

Case Study 2: Will Contested Because of Prior Contribution to Assets

Frank, a widower, died leaving an estate consisting of the family home and proceeds from the sale of a family-owned business. His will divided his assets equally amongst his eight children. Frank’s eldest son contested the will, requesting an increased proportion of the inheritance as he had materially assisted in building the family business. The court awarded the eldest son a significantly larger proportion of the estate, reducing the provision for the other seven children accordingly.

This case study demonstrates that if an individual has contributed financially or in kind to an asset distributed in a will, they may have greater claim to the estate than other beneficiaries.

Case Study 3: Contribution to the Support of the Testator

Linda died leaving three children. She bequeathed everything to her youngest daughter, who was also appointed as executor of the estate. The youngest daughter had provided Linda with emotional and economic support for the last fifteen years of her life. She had paid off the small mortgage on Linda’s house and made improvements and renovations to her property. She had also cared for Linda’s physical and emotional wellbeing, assisting with doctor’s appointments, and visited regularly.

Linda’s son returned for his mother’s funeral after many years abroad. He made a claim for a portion of the estate, despite the fact that he had not seen his mother for many years and had not provided material or emotional support to her. Linda’s third child did not make a claim for an increased inheritance, because she was financially secure and felt that it was fair for her sister to inherit the estate after providing ongoing care for her mother.

As Linda’s son was able to demonstrate financial need, he was awarded one-third of Linda’s estate. The remaining two-thirds of the estate was awarded to Linda’s youngest daughter.

This case study shows first that a claimant has an opportunity to contest a will even when they have had limited contact with the deceased. Second, it demonstrates again that the financial need of the claimant is a significant factor in applications for increased inheritance. Finally, this case also demonstrates that when one beneficiary has provided significant financial and practical support to the deceased this will be a consideration in determining the distribution of the estate. Although Linda’s youngest daughter had to share the estate with her brother, she was allocated twice the portion in recognition of her closer relationship with, and contributions to, her mother.

These case study examples demonstrate the importance of consulting with a solicitor if you feel that you have been unfairly provided for in a will, or need to defend a will. In some instances these cases can be undertaken on a No Win, No Fee basis. 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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