Challenge A Will

Disputing or challenging the Will of a deceased relative is no small feat. It requires a specialised understanding of the law surrounding Wills, what it means to challenge a Will and the likely outcome of your challenge. Family situations can be extremely complicated, particularly if large sums of money are involved.

Generally speaking, there are two ways Australians can contest the Will of a deceased relative:

• Contesting a will.
• Challenging a will as improperly made or executed.

These are two different processes with different standards to meet before challenges or contestations are heard by the Court. You can contest a Will if you believe that it does not provide for you or does not provide for you fairly. This usually compares to how much it provides for the other people named in the Will.

For example, if you are one of several children of the deceased, but the deceased person did not name you in their Will but did name your siblings as beneficiaries, and there was no significant breakdown in your relationship with the deceased that might cause you to have been written out of the Will, you are entitled to challenge the Will, because it does not provide fairly, given your relationship with the deceased as their child.

In New South Wales, a ‘family provision’ claim can only be made by an ‘eligible person’. Under the law, “eligible persons” are generally a spouse, parent, child, step-child, or designated person by the Will maker. Or, in the case of a former partner, applying to the Court for a property settlement.

Challenging the Improper Execution or Creation of a Will: Challenging a will as being improperly made or executed is a provision granted to individuals who feel (or who can prove) that the Will was crafted to the benefit of one individual or group of people from within the family unit, or that certain elements of the Will may have been crafted under duress or undue pressure from the persons named in the Will.

Alternatively, a Will can be challenged as being improperly made if the Will maker may not have been of sound mind to reasonably understand what they were signing into the Will to a particular beneficiary or beneficiaries. Or, if a witness to the Will was named in it, or if the Will wasn’t prepared and signed per the Law.

A Will can be challenged as improperly executed if it can be proven that the Executor has improperly distributed the Will (i.e.: not transferred money or property to a Beneficiary).

If you believe there have been errors made in the creation or execution of a Will to which you are a beneficiary, contact AJB Stevens and allow us to begin the process of challenging or contesting the Will.

Challenging a Will in Australia is a significant legal action that requires careful consideration and strategic planning. It is understandable that this process can seem overwhelming, particularly during a time of grief. However, if you believe that you have been unfairly excluded from a Will or inadequately provided for, there are specific actions you can take to address this issue.

1. Seek Legal Advice
   The first and most crucial step is to consult with a legal professional who specialises in Will and Estate Law. An experienced lawyer can help you understand your rights and assess the merits of your case. Given the complexity of estate law and the strict time limits that often apply to these cases, obtaining timely legal advice is essential.
2. Determine Your Eligibility
   Your legal team will help you determine whether you are eligible to claim the estate. Under Australian law, not everyone is entitled to contest a Will. Eligibility is typically restricted to certain categories of people, such as spouses, children, dependents, or those who had a close personal relationship with the deceased. Each state and territory has its own legislation defining who is eligible, so it’s important to understand the specific requirements that apply to your case.
3. Assess the Validity of the Will
   Part of challenging or contesting a Will involves assessing whether the Will itself meets all legal validity requirements. This includes ensuring the Will was properly signed and witnessed, and that the testator (the person who made the Will) had the mental capacity to understand the implications of their decisions when the Will was made.
4. Investigate the Circumstances of the Will’s Creation
   Your legal team will investigate further if there are concerns about how the Will was made. This may involve looking into whether the deceased was under undue pressure or influence when making the Will or if there were any signs of fraud or incapacity. Gathering evidence for these claims is a critical part of building your case.
5. Lodging Your Claim
   Once you have established your eligibility and gathered sufficient evidence, your lawyer will assist you in formally lodging your claim. This usually involves preparing and filing specific legal documents with the court. The exact process can vary depending on the state or territory where the claim is made.
6. Negotiation and Mediation
   Often, disputes over Wills can be resolved without needing a court trial. Your legal team may attempt to negotiate a settlement with the other parties involved or participate in mediation to reach an agreeable resolution.
7. Going to Court
   If negotiation and mediation do not result in a satisfactory outcome, your case may proceed to court. At this stage, both sides present their evidence, and a judge makes a final decision based on the merits of the case.

If there is a Will for your loved one, but the Will does not provide for you, or you believe it provides you with unfair provision, you can ‘contest’ that Will. Sometimes in New South Wales, this is called a ‘family provision’ claim. Note, you need to be an eligible person as defined in the law to make this type of claim.

Determining whether you are an ‘eligible person’ to challenge a Will under Australian law, particularly as outlined in Section 57 of the Succession Act 2006 (NSW), is the first step in contesting a Will. The legislation carefully specifies who may be considered eligible, focusing on the relationship between the individual making the claim and the deceased. Eligible people include:

• Spouse: This includes the husband or wife of the deceased. In today’s context, it also encompasses individuals in legally recognised marriages, irrespective of gender, following Australia’s legal acceptance of same-sex marriage.
• De facto partner: A person who was in a de facto relationship with the deceased at the time of death. A de facto relationship is generally recognised when two adults live together as a couple on a genuine domestic basis but are not legally married to each other.
• Child: This includes biological children, adopted children, and, in certain circumstances, stepchildren of the deceased. Each state or territory may have specific provisions regarding the eligibility of stepchildren.
• Former spouse: Even after divorce, a former spouse may be eligible to contest a Will, especially if there were financial ties, ongoing maintenance, or other unresolved financial matters at the time of the deceased’s death.
• Dependent: A person who was wholly or partly dependent on the deceased at any particular time. This can include grandchildren or even more distant relatives, provided they can demonstrate actual financial dependence on the deceased.
• Member of the household: This includes individuals who lived with the deceased and were part of their household. It could encompass a range of relationships, including non-blood relations who shared a home with the deceased.
• Person in a close personal relationship: This refers to someone who lived with the deceased at the time of their death and was in a relationship with them that involved mutual commitment to sharing life together, with one or each providing for the emotional support and personal care of the other. This category is broader than a de facto partnership and can include caregiving relationships.

Eligibility does not guarantee success in contesting a Will. To succeed, you must demonstrate to the court that the deceased did not make ‘adequate provision’ for your life maintenance, education, or advancement. The court considers various factors, including your financial needs, your relationship with the deceased, and the size of the estate.

At AJB Stevens, we have the experience and understanding to guide you through assessing your eligibility and, if appropriate, pursuing a claim to ensure that you receive fair treatment under the law.

Yes. If you consider that the Will does not fairly provide for you and you meet eligibility criteria as defined in the law.

The amount that you will receive will depend on your circumstances, the circumstances of the estate and anyone else who may be entitled to provision.

The court will only make an order for provision out of the estate where the court judged that it ought to be made for the “maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.” This is a discretionary exercise and the court does not have to make an order or order any particular amount.

The court will consider the following factors:

• the relationship between the applicant and the deceased, including the nature and duration of the relationship
• the nature and extent of any obligations the deceased owed to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the estate
• the nature and extent of the deceased’s estate
• the financial resources (including earning capacity) and financial needs, both present and future, of the applicant
• if the applicant is cohabiting with another person—the financial circumstances of the other person
• any physical, intellectual or mental disability of the applicant
  the age of the applicant
• any contribution (whether financial or otherwise) by the applicant to the estate of the deceased or to the welfare of them or their family
• any provision made for the applicant by the deceased, either during the deceased’s lifetime or made from the deceased’s estate
• any evidence of the intentions of the deceased, including evidence of statements made by the deceased
• whether the applicant was being maintained by the deceased person before their death
• whether any other person is liable to support the applicant
• the character and conduct of the applicant before and after the date of the death of the deceased
• the conduct of any other person before and after the date of the death of the deceased
• any relevant Aboriginal or Torres Strait Islander customary law
• any other matter, the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.

Yes. Where there is no will, the situation is called ‘intestacy’ and is governed by ‘intestacy rules’ set out in the Succession Act 2006 (NSW). Under section 59(1) of that Act, you can contest the amount that you would be awarded under the intestacy rules under section 59(1) of that Act.

Australian law sets specific deadlines for initiating such actions, which vary depending on the nature of the challenge.

Time Limits for Family Provision Claims
Under the Succession Act 2006 (NSW), for example, if you believe a Will did not adequately provide for your maintenance, education, or advancement in life, you have a limited period to act. Specifically, a ‘family provision’ claim must be brought within 12 months from the date of the deceased’s death. This timeframe is crucial as it refers to initiating legal proceedings in court.

This 12-month period allows the court to deal with claims while the matters are relatively fresh and ensures the administration of estates can be concluded without indefinite delay. However, exceptions can sometimes be made where a claimant can provide a satisfactory reason for their delay and obtain the court’s permission to proceed with their claim outside this timeframe.

Challenging the Validity of a Will
When it comes to challenging the validity of a Will – for reasons such as undue influence, lack of testamentary capacity, or issues with how the Will was executed – there is no strict statutory deadline in the same way as there is for family provision claims.

The optimal timing for such a challenge is before probate has been granted. Probate is the legal process through which the court validates the Will as the legitimate final testament of the deceased, granting the executor the authority to administer the estate accordingly. Executors are typically expected to apply for probate within six months of the deceased’s death, though this can vary.

Once probate is granted, challenging the Will becomes more complicated, particularly if the estate’s assets have begun to be distributed. While it’s not impossible to challenge a Will after probate, the process is undoubtedly more arduous, and the chances of success may be diminished.

If you’re considering challenging the validity of a Will, a proactive step is to lodge a ‘probate caveat’ with the court. This acts as a temporary stop to the granting of probate, allowing time for any disputes to be resolved. Lodging a caveat should be done with careful consideration and legal advice, as it signals to the court and the estate’s executor that a contest needs resolution before the estate can be administered.

At AJB Stevens, our experienced team can provide the guidance and support needed to navigate these processes effectively, ensuring that your rights are protected and that you take action within the relevant legal deadlines.

Yes, under section 58(2), the court can allow an eligible person to contest the will for lack of family provision under the Succession Act 2006. However, you will need to show the court “sufficient cause” for why you couldn’t bring your case in time. In such a case the court will always consider whether the lateness of your claim might be prejudicial to other beneficiaries of the Will.

Yes. You can challenge a will in NSW where the assets that constitute the estate are located in NSW. That is the state where probate will be granted (see section 40 of the Probate and Administration Act 1898).

Yes. You will need to engage a lawyer to challenge the will on your behalf in NSW.

This depends on a range of factors. If your challenge is successful, it is possible that the costs will be paid out of the estate, but it is not guaranteed. For more information on payment for fees, get in touch with us.

Talk with us about the possibility of challenging a will on a ‘no win, no fee’ basis.

At AJB Stevens, our approach to challenging a will is designed to support and guide you through each step, ensuring your rights are upheld and your case is presented as strongly as possible.

Initial Case Assessment
Our team of experienced lawyers will begin by conducting an in-depth assessment of your case. This crucial first step allows us to understand the specifics of your situation, such as your relationship to the deceased, the contents of the Will, and the reasons you believe you have grounds to challenge it. Our aim during this phase is to evaluate the strength of your case by considering factors such as eligibility under the Succession Act, potential claims for inadequate provision, or questions regarding the validity of the Will itself.

Information Gathering
Following the initial assessment, we delve deeper into gathering all necessary information and evidence to support your claim. This stage involves collecting documents such as the Will, any relevant correspondence, financial records, and other pertinent materials. We may also seek statements from witnesses or experts, such as medical professionals, who can provide insight into the deceased’s capacity when the Will was made. This preparation is essential for building a compelling case on your behalf.

Negotiation
Armed with a strong case foundation, our next step is to attempt to resolve the matter through negotiation. Our skilled lawyers employ negotiation tactics to achieve a fair outcome without needing court intervention. This approach is often preferred, as it can lead to a quicker, less costly resolution, minimising the emotional strain on all parties involved.

Court Process
Should negotiations not result in a satisfactory agreement, AJB Stevens is fully prepared to represent you in court. This involves filing legal documents to initiate your challenge or contest, preparing detailed submissions, and presenting your case before the court. Throughout this process, we ensure you are well-informed and supported, explaining each step and what can be expected as we advocate on your behalf.

Continuous Support and Communication
Regardless of the stage of your case, AJB Stevens maintains open lines of communication, keeping you informed of progress and developments. We understand the emotional challenges that can accompany challenging a Will and are committed to providing legal representation and the understanding and support you need during this difficult time.

At AJB Stevens, our expertise in Family and Estate Law and our dedicated approach to client care combine to ensure that you have the best possible guidance and representation if you wish to challenge a Will.

This all depends on your case. Will and Estate claims can take anywhere from one to three years however this may take longer depending on your situation.

Your appointed AJB Stevens lawyer will be able to give you an estimate of how long things will take to progress and for you to receive entitlements, always making sure you are updated with any changes.