This article provides general information about will contests in Australia. Every situation is unique, and this information should not be considered legal advice. If you’re dealing with issues related to a contested will, we encourage you to speak with a qualified legal professional about your specific circumstances.
When a Will Doesn’t Seem Right
When someone we care about passes away, their will guides how their belongings and assets are distributed. But sometimes, things don’t seem quite right with a will. Perhaps you believe the person wasn’t thinking clearly when they wrote it, or someone may have pressured them to change it. Maybe you were dependent on the person who passed away, but they didn’t provide for you in their will.
In these situations, Australian law recognizes that there might be legitimate reasons to question a will or its provisions. Let’s explore what this means and how the process typically works.
Two Ways to Contest a Will
In Australia, there are two main ways people can raise concerns about a will:
Questioning the will’s validity: This happens when someone believes the will itself shouldn’t be legally recognized. This might be because the person who wrote it wasn’t of sound mind, was unduly influenced, or because the document wasn’t properly prepared or signed.
Making a family provision claim: This is different from questioning validity. Here, you’re acknowledging the will is legally valid, but arguing it doesn’t adequately provide for someone who should have been taken care of.
Understanding this difference is important because each path involves different requirements and timeframes.
Who Can Raise Concerns About a Will?
Not everyone can legally contest a will. Your ability to do so depends on your relationship to the person who passed away and the type of claim.
For questioning a will’s validity, you typically need to be:
- Named as a beneficiary in the current will
- Named in a previous will but not the current one
- Someone who would benefit if there were no will at all
- An executor of the estate
For family provision claims, you generally need to be:
- A spouse or domestic partner (current or former in some cases)
- A child (including adopted and sometimes step-children)
- Someone who was financially dependent on the deceased
- In some parts of Australia, a grandchild or household member
The exact rules vary across different states and territories, so where you live affects who can make these claims.
Reasons People Question Wills
When Questioning Validity
There are several common reasons why someone might question whether a will is legally valid:
The person may not have understood what they were doing. For a will to be valid, the person must have understood they were making a will, known what they owned, comprehended who might reasonably expect to benefit, and not been affected by delusions that influenced their decisions.
Someone may have pressured them. If someone exerted pressure that overpowered the will-maker’s own wishes, this could invalidate the will. This can be difficult to prove since it usually happens in private.
There may have been deception or forgery. This includes tricking someone into signing a document they didn’t know was a will, including false information that affected their decisions, or forging signatures.
The will may not have been properly executed. Australian law requires wills to be in writing, signed by the will-maker, and witnessed by at least two people who aren’t beneficiaries. If these requirements weren’t met, the will might not be valid.
When Making a Family Provision Claim
Family provision claims are different. Here, you’re saying the will is valid, but it doesn’t adequately provide for someone who should have been taken care of. Courts consider many factors in these cases, including:
- Your relationship with the person who passed away
- Your financial situation and needs
- The financial circumstances of other beneficiaries
- The size of the estate
- Any contributions you made to the deceased’s welfare or estate
- The deceased’s wishes and any reasons they may have had for their decisions
The Journey of Contesting a Will
While the specific process varies across Australia, contesting a will generally follows these steps:
Gathering information. This includes obtaining a copy of the will and learning about the estate.
Being mindful of time limits. There are strict deadlines for contesting wills. For family provision claims, you typically have 6-12 months from the date of death or grant of probate, depending on where you live. If you miss these deadlines, you may lose your right to contest.
Letting people know. Before court proceedings begin, you’ll typically need to notify the executor and beneficiaries of your intention to challenge the will.
Trying to resolve things through discussion. Most jurisdictions encourage or require attempts to resolve disputes through mediation or negotiation before going to court. Many will contests are resolved this way, without the expense and emotional strain of a full court hearing.
Going to court if necessary. If an agreement can’t be reached, the matter goes to court. This involves filing documents with the Supreme Court, gathering evidence, preparing statements, and presenting legal arguments.
Receiving a decision. The court may uphold the will, invalidate it in favor of a previous will, declare there is no valid will, or order a redistribution of assets in the case of family provision claims.
Understanding the Costs
Contesting a will involves various expenses, which may include legal fees, court costs, and expert witness fees. Who pays these costs depends on several factors, including the court’s discretion, the outcome of the case, how reasonable the claims were, and how the parties conducted themselves. In many cases, costs are paid from the estate, but this isn’t guaranteed.
Differences Across Australia
It’s worth noting that will contest laws vary between states and territories. Each jurisdiction has different time limits, eligibility criteria, and specific procedures. For example, in New South Wales, you generally have 12 months from the date of death to file a family provision claim, while in Victoria, it’s typically 6 months from the grant of probate.
Finding Other Ways to Resolve Disagreements
Not all disagreements over wills need to go through formal legal contests. Alternative approaches include:
Mediation: A neutral third party helps everyone negotiate and find solutions that work for all involved.
Family conferences: These are structured discussions between family members, sometimes with legal representatives present, that focus on understanding different perspectives and finding mutually acceptable solutions.
Collaborative practice: This involves legal representatives and parties committing to resolution without court, sometimes with the help of financial advisors or counselors.
Moving Forward
Questioning a will is often an emotional process that happens during an already difficult time of grief. Understanding the framework and options available can help navigate these challenging circumstances with greater clarity.
If you’re considering contesting a will or responding to a contest, speaking with a legal professional who specializes in this area in your state or territory is an important step. They can help you understand how these general principles apply to your specific situation.
Remember: This information is general in nature and provides an overview only. Will contest laws vary across Australia and change over time. Please consider seeking independent legal advice relevant to your specific circumstances and location.