You’ve planned all the contingencies. Done all the maths. Put in the time to protect your family’s future 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. There may be family disputes over inheritance or interference from former spouses or children from previous marriages. Then there’s the risk of creditors coming out of the woodworks to make a claim on property or assets.
On top of this, the Will could be out-of-date, or missing a key asset you completely overlooked.
So many things can go wrong.
Most people assume it’s all smooth sailing once a Will is completed and the estate is ready for administration. But that’s rarely the case. An Australian study by social researchers Jill Wilson and Ben White in 2016 found about 75% of estate claims contested in court were successful.
That’s a pretty scary statistic.
Anyone who thinks they have been left out of a Will may come forward with a valid claim to have a Will successfully contested and overturned. Whether it’s because they believed the Will was written under undue influence, or they believed they weren’t adequately provided for as dependents or beneficiaries of the Will, they can make what’s called a ‘Family Provision’ claim.
But don’t panic. To prevent the future uncertainty of ‘will they, won’t they’ we’ve laid out the eligibility criteria, the circumstances and when they can apply below.
The process for contesting a Will varies depending on which Australian state or territory you reside in. But it all typically follows the same pattern. To contest a Will you must first lodge an application for a Family Provision Order with the Supreme Court. This must be done within a 3 to 12 month time frame from the date of death depending on your state of residence.
Once this has been submitted the court will review the application to decide whether the claim is valid. They will need to determine whether the person is ‘eligible’ for a part of the Estate and if their grounds for lodging a claim are valid according to the grounds of: undue influence or adequate provision.
When a decision is made the courts will contact the Executor of the Will and the claimant to organise a mediation. All attempts will be made to reach an agreement over the Estate outside of court in the first instance. If mediation is unsuccessful the claim will be taken to court.
The cost of contesting a Will depends entirely on the outcome of the claim and the way it is handled by the Executor of the Will and the claimant. The application itself carries a fee and if the case ends up before the courts there will be additional legal costs.
If the matter is resolved outside court the average cost will range from $5,000 - $30,000. If it goes to court it could cost anywhere from $20,000 - $100,000.
The court will determine who pays the bill depending on the outcome of the claim. If the claim is successful through mediation 100% of the legal fees will be paid by the claimant. If the claim succeeds before the courts the court will order 70% of the legal costs be paid out by the Estate.
There are different laws across Australia when it comes to contesting a Will. Each state and territory has a certain time frame by which you must lodge your valid claim in court. But there are certain circumstances where the courts may allow exemptions for claims outside these time frames, for example if the applicant was unaware the person had died.
In New South Wales and the Northern Territory there is a 12 month time frame from the date of death to lodge a valid claim in court. In Queensland you must notify the Executor of the Will you are contesting within six months of the grant of probate, and you have another 3 months to lodge the claim in court. In the ACT, South Australia, Western Australia and Victoria you must lodge a claim within six months of the death. While in Tasmania you have only 3 months to lodge a claim.
It goes without saying the best proof to support your claim to someone’s Estate would be a testimonial from the Will maker themselves. Since they are unable to help from the grave you will need to produce other documents either proving the Will is invalid, or proving you deserve to benefit from the Estate.
Proving the Will is invalid or proving your dependence on the Testator
Evidence which may build your claim against the validity of the WIll could take the form of:
These records could help prove the Will maker’s intentions around how their estate should be distributed, or whether they had changed their plans last minute or as a result of interference from another family member or third party. Medical documents could help to identify if the testator was suffering any condition which may have impacted their mental capacity at the time of writing.
The types of persons able to contest a Will are called ‘eligible persons’.
The list of eligible persons depends on the state or territory where the Will was made. However, the categories of people who can apply to the court to contest a Will 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.
Legislation around Contesting a Will takes a relatively consistent approach across Australia but there are some significant distinctions. The main differences relate to eligibility criteria, time frames for lodging a claim, what assets may be subject to an order and what constitutes ‘adequate provision’. While they may seem like minor differences they can have a major impact on your ability to contest a Will or what assets you may be entitled to under your claim.
Succession Act 2006 (NSW) ch 3
Succession Act 1981 (Qld) pt 4
Administration and Probate Act 1958 (Vic) pt IV120
Inheritance (Family Provision) Act 1972 (SA)
Family Provision Act 1972 (WA)
Testator’s Family Maintenance Act 1912 (Tas)
Family Provision Act 1970 (NT)
Family Provision Act 1969 (ACT)
Maintenance, education or advancement in life
Maintenance and support
Maintenance and support
Maintenance, education or advancement in life
Maintenance,support, education or advancement in life
Maintenance and support
Maintenance, education and advancement in life
Maintenance, education or advancement in life (s 8(2))
Wife; husband; de facto partner; child; former wife or husband; a person who was a member of the same household as, and was dependent upon, the deceased; a grandchild who was wholly or partly dependent upon the deceased; a person with whom the deceased was in a close personal relationship at the date of the deceased’s death
Spouse, child or dependent.
A person for whom the deceased had responsibility to make provision
Spouse; person divorced from the deceased person; domestic partner; child; child of spouse or domestic partner; child of the child of the deceased; parent; sibling
Spouse and de facto partner at time of death; entitled to maintenance if former spouse/de facto partner; child; grandchild if maintained or if parent had predeceased grandparent; stepchild;124 parent (including by marriage)
Spouse (note s 9(4) still applies even if they remarry or enter into a significant relationship); children; parents of the deceased, if the deceased dies without leaving a spouse or children; a person who at the date of death was receiving or entitled to receive maintenance
Spouse or de facto partner; former spouse or de facto partner; child; stepchild; grandchild; parent
Partner; person in domestic relationship with deceased for two or more years continuously; child; stepchild; grandchild; parent
Property that may be subject to order
The Estate - including any property designated as notional estate under
Matters to be considered by the court
The nature and duration of the relationship; any responsibilities owed by the deceased to the applicant; the nature and extent of the estate (including notional estate); the financial resources and needs (present and future) of the applicant; if the applicant cohabits with another person; any physical, mental or intellectual disability of the applicant or any beneficiary of the estate; the applicant’s age; any financial or non-financial contributions by the applicant; any provision made for the applicant during the deceased’s lifetime or from the estate; the deceased’s testamentary intentions; whether the applicant was being maintained by the deceased; any other person liable to support the applicant; the applicant’s character and conduct; the conduct of any other person; Aboriginal and Torres Strait Islander customary law (if relevant); any other relevant matter.
Disentitling character or conduct
Any relationship (nature and length) between the deceased and the applicant; any obligations of the deceased to the applicant/other applicant(s)/ beneficiaries; the size and nature of the estate; the financial resources (including earning capacity) and financial needs of the applicant/other applicant/ beneficiary, present and future; any physical, mental or intellectual disability of any applicant beneficiary; the applicant’s age; any voluntary contribution of the applicant to the estate or welfare of the deceased or the deceased’s family; any benefits previously given by the deceased to any applicant/ beneficiary; whether the applicant was being maintained by the deceased (including the extent and basis upon which the deceased had assumed that responsibility); the liability of any other person to maintain the applicant; the character and conduct of the applicant or any other person; any other relevant matter
Disentitling character or conduct
Disentitling character or conduct, or on any other ground
Whether the applicant has any independent means, whether provided by the deceased or from any other source; disentitling conduct; the deceased’s reasons
Any benefits conferred (expressly or otherwise) on applicant by the deceased by will; disentitling character or conduct; the testator’s reasons
The character and conduct of the applicant; the nature and duration of the relationship between the applicant and the deceased; any financial and non- financial contributions made directly or indirectly; any contributions (including homemaker or parent) to the welfare of the other or any child of either person; the income, property and financial resources of both; the physical and mental capacity for employment; the financial needs and obligations of both; the responsibilities of either to support any other person; any order made under the Domestic Relationships Act 1994 (ACT) s 15; any maintenance payments by one to the other; any other relevant matter; the testator’s reasons
The most common reasons for contesting a Will fall into the below categories:
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 can be 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 substantially against their true intentions.
If you think that a Will was written under either (or both) of these grounds, we strongly suggest that you seek legal advice as soon as possible.
There are two things you need to tick off before you start making a claim under the family provision laws:
If you nodded to both those things, then you could be eligible to make a claim under the Family Provision laws.
As we mentioned before, 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 dependent of the Will 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.
In non-legal speak, that means it is likely that you received below a ‘sufficient’ amount to keep living a reasonably comfortable lifestyle.
One more thing - you’ll need to file your claim within a specific time limit set out by your state and territory. 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.
Good question. The short answer? If a person fits into the ‘eligible person’ category under the law in that State, there is nothing stopping them from applying to contest the Will. But, there are some ways you can reduce that risk, including: