Contesting a Will

There are generally three areas in which you can contest or challenge a Will.

  1. There may be an argument that the Will maker did not have capacity to understand what they were doing when the Will was made.
  2. There may be a suggestion that the Will maker was unduly influenced in making the Will.
  3. There may be a claim that the Will maker did not adequately provide for you, or did not provide for you at all, as a beneficiary.

Each of these claims will depend on all of the circumstances and the evidence that can be used to support the claim. We can provide you with advice as to whether you have a viable claim.

We can also advise you on how to limit a potential claim if you are the Will maker, with a properly drafted Will and how to defend a claim if you are the Executor of the estate.

I have been cut out of the Will, what can I do?

If you’ve been cut out of your parent’s or a loved one's Will, the two main considerations in relation to contesting that Will are:

  1. whether your parent knew what they were doing; and
  2. even if they did know what they were doing, whether they ought to have made provision for you.

The first issue relates to the capacity of the Will maker and it depends upon a medical and legal assessment of whether the Will maker understood what they were doing.

The second issue is a family provision claim under the Succession Act which allows an ‘eligible beneficiary’ to make a claim if the provision for them is inadequate. An eligible beneficiary is:

  • a spouse (including a de facto spouse and a former spouse ('spouse' also covers same-sex relationships);
  • a child; and
  • a person financially dependent on the deceased or in a close personal relationship with the deceased (which includes a relationship based on caring arrangements).

The Will maker did not know what they were doing when they made that Will

If there is sufficient evidence to show that the Will maker really did not have capacity to make their Will, then there is potential to contest that Will. A successful challenge would then mean that a prior Will may then come into operation. If there is no valid prior Will, the laws of intestacy will apply.

The evidence needs to be strong to prove incapacity. The mere fact that you may have been left out of the Will alone is not enough. If there is contemporary medical evidence at the time the Will was made, which brings into question the capacity, and the Will appears inconsistent with prior Wills or the family structure, then that may point towards some incapacity.

We can assist you in assessing any evidence you have as to the Will maker’s incapacity and give you guidance on any further evidence needed and/or the potential for your claim to succeed.

I have not been given much at all under the Will. What can I do?

If the Will maker had capacity but just did not give you much of the estate (compared to other beneficiaries), then you may have a claim. You need to be an eligible beneficiary (see definition of this above).

If you are an eligible beneficiary, the next step is to determine whether what you have been given is adequate. That involves a number of issues including your financial needs and the relationship you had with the deceased.

We can give you more information as to what the court will take into account and we assist you with considering all the evidence and weighing up the potential for success or otherwise in contesting or challenging what you consider to be an unfair or unreasonable Will.

I think my sibling bullied the Will maker into making the Will against their wishes

The Will can be challenged on the grounds that the Will maker was unduly influenced in deciding how to make their Will.

However, this is a very difficult case to succeed in as the evidence must be capable of proving that the intentions of the Will maker were so overborne that they were coerced into doing something they do not want to do.

I don't want my child to inherit anything from me. Can I cut them out of my Will?

This is an unfortunately common statement. Disinheriting a child is not easy but it really depends upon all the facts and circumstances.

So, a wealthy adult child might find it difficult to contest the parent’s Will if the brother and sister were relatively poor and an adult child who has had nothing to do with the parent for the past 30 years may also find it difficult to claim that they were not adequately provided for.

These are merely two extreme examples. Usually, there is not one single element which can be relied on to exclude a claim.

You could consider at least documenting your reasons for not providing for your child. We can assist you in this and guide you as to what matters are relevant to be recorded. However, this is no guarantee that the Will cannot be contested.

I am the Executor and now I'm being sued by someone excluded from the estate

The role of the Executor generally, is to uphold the terms of the Will. But there is also some discretion for the Executor to negotiate to settle a claim rather than waste substantial money (from the estate) in fully defending a Will which, when objectively viewed, is unreasonable in its provisions.

We can assist you in considering all the evidence and weighing up the potential for success or otherwise in defending the claim.

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