You’ve planned all the contingencies. Done all the math. Put in the time to plan for your family’s future security by writing a Will.
But sometimes, life just happens.
Despite all of your best laid plans, you can’t always predict how others will react. Your siblings might get into an argument, or your family members might not be happy with your division of property and assets. Creditors might come out of the woodworks to make claims. The Will itself could be out-of-date, or missing a key element you completely overlooked.
We explain how and why you can contest a Will and, on the flipside, how you can set up your Will to protect it from challenges.
It’s true that the majority of Wills are upheld in court. However, in certain circumstances, people can come forward with a valid claim to have the Will successfully contested and overturned.
The main reasons for overturning a Will are:
Each of these are explained in further detail below.
While it depends on the state or territory where the Will was made, the categories of people who can apply to view and obtain a copy of a Will from the court or probate registry can include:
If you or anyone you’re leaving your assets to - or not leaving your assets to - fall under the above categories, they may have a valid claim to contest your Will.
When writing a Will, some Testators cannot make proper decisions for themselves (incapacity) or are coerced to act against their wishes (undue influence).
The undue influence or grounds for incapacity claims are as follows:
While the above are all likely to be valid claims, it’s important to note that the level of evidence required to prove these circumstances are quite difficult to meet. For example, if we’re looking at undue influence, the courts will only proceed to overturn the Will if they think the person was strong-armed to an extent that went extremely against their true intentions.
If you suspect a Will is invalid on either or both of these grounds you are best to seek expert legal advice and act as soon as possible after the death of the Testator to make a claim.
You may be eligible under family provision laws to make what’s known as a Testator’s Family Maintenance claim if you meet the two criteria below:
Each state in Australia has its own rules about who can claim and by when. But the general rule of thumb is a spouse, de facto partner, child or dependant of the Will Maker can apply to the court to receive a financial distribution or have it increased from the Estate. The key thing to know here is that you will have to prove that the Will has left you without adequate provision for your life maintenance, education or advancement.
A Testator’s Family Maintenance claim can be served on an Executor or the court within a specific time limit of the Grant of Probate. In ACT, SA, WA, VIC and QLD that’s within 6 months of the Grant of Probate, NT and NSW are within 12 months, and Tasmania is a quick 3 months.
If you’re unsure if this applies to you, or if you need confirmation about what your state requires from you, we recommend popping into your lawyer’s office to get some advice on whether you have a valid claim.
Some careful forward planning will put you in the best position to avoid contests, claims and messy family squabbles over your Will and Estate.
Here are some tips to reduce the risk of your Will getting contested.
At Safewill we support you every step of the way to create a bespoke Will which ticks all the boxes. Get started with your Will today.