6 Dec 2023Successfully contesting a will can lead to a fairer distribution of assets from a deceased estate and provide protection for vulnerable family members. However, the experience can be fraught with turmoil and financial strain. Emotions can run high and relationships within the family can deteriorate.
Contesting a will is a complex legal process that requires careful consideration. In this article, four of our lawyers share stories from their own practice.
Is contesting a will open to anyone?
In Australia, contesting a will is not automatically available to everyone. The law sets out specific categories of individuals who have the legal standing to do so.
These individuals are referred to as “eligible persons” and can make a claim under certain circumstances, if they believe they have the legal grounds to do so.
The eligibility criteria vary slightly from one state or territory to another, but in New South Wales, an “eligible person” is defined in section 57 of the Succession Act 2006 (NSW).
Spouse or de facto partner: this includes the current spouse or de facto partner of the deceased at the time of their death, as well as any former spouse or former de facto of the deceased.
Children: this includes both biological and adopted children of the deceased, whether minors or adult children.
Other persons: this includes a person who was, at any particular time, wholly or partly dependent on the deceased, or a grandchild, who was dependent on the deceased at any time during their life.
Persons in a close personal relationship: this includes a person with whom the deceased was living in a close personal relationship at the time of their death.
It is important to note that simply being related to the deceased does not automatically grant the right to contest the will. Eligible persons must meet specific criteria set out in the relevant state or territory’s legislation.
Grounds for contesting a will
People often contest a will because they believe they have been unfairly left out, or not given an appropriate share of the estate. In these circumstances, the person will file a family provision claim.
Generally, this occurs where there are estranged relationships or new marriages within families, and people who expected to be beneficiaries find they are not, or discover that they are receiving a smaller share than they might have anticipated.
However, people also file these claims if they feel they have made a significant contribution financially to the estate’s assets, which is not recognised in the will, or where the will is old or seen to be outdated.
Challenging the validity of a will
However, there are other circumstances in which people may contest a will.
This includes believing the will to be invalid due to the deceased lacking testamentary capacity when they made the will – that is, they were not of sound mind, memory or understanding when they made the will. (Please see What is testamentary capacity? A basic guide.)
People may also contest a will on the basis of undue influence – that is, they believe that someone exerted pressure or manipulated the deceased to change their will against their wishes. (Please see “Our father only disinherited us because of undue influence by his attorney.” Which case won?)
If the person can provide sufficient evidence to support their claims, the court may find the will is invalid. In these situations, the estate may be distributed according to the most recent previous will, or else in accordance with the relevant state legislation.
Contesting a will via a family provision claim
In NSW, seeking adequate provision from a deceased’s estate is called a family provision claim. These claims can also be filed if there was no will. Family provision claims are very common, and a significant majority of them are settled out of court, often through mediation.
Under NSW law, if a person leaves assets as part of their estate, it can be contested within 12 months, although there can be exceptions to this time limit.
As mentioned above, an “eligible person” automatically includes spouses and biological children, but also may include stepchildren, carers, former spouses or de factos, grandchildren and friends, as long as they can establish that they were members of the household and were dependent on the deceased.
Notional estate claims in NSW
People In NSW can also make notional estate claims. These are applications that are made to the court to have assets returned to a deceased estate, where those assets were given by the deceased to other people up to three years before their death.
Before making a notional estate order, a court must be satisfied that the gift was given with the intention to thwart or limit a family provision claim.
NSW is currently the only Australian state that allows notional estate claims. The intention is to prevent people from circumventing a family provision order by giving away their assets prior to their death.
Factors considered in a family provision claim
It is important to remember that a family provision claim can only be commenced by an eligible person, as discussed above.
Many people think they should be entitled to a larger share of an estate left in a will because of their relationship to the deceased, or they feel that they deserved more, while one or more of the other recipients deserved less.
However, the court is mainly concerned that an eligible person’s maintenance, education or advancement in life can be properly provided for. (Please see Rest assured: a legal guide to wills, estates, planning ahead and funerals in NSW, State Library of NSW, 2019.)
Section 60(2) of the Succession Act sets out 16 matters which the court may consider in making its decision – although noting the 16th item includes any matter the court deems fit.
Whether a claim is successful will depend on these considerations and the evidence provided to support the claim – such as the strength of the relationship with the deceased, the size of the estate, the intentions of the testator, and, importantly, the financial needs of the claimant.
Deliberately leaving people out of wills
People often write wills entirely leaving out family members or other eligible people.
As mentioned above, many family provision claims arise from second or blended families, when the deceased leaves everything to the new spouse and nothing to the children of the first marriage.
There may be a very good reason to write a child or other eligible person out of a will. There may be drug or gambling addictions, or a child may have been estranged for many years and resisted any attempts at reconciliation.
Although the deceased may have wished not to include certain people in their will, if that person is an eligible person, they have a right to contest it. If they do contest the will, it will be up to the court – or the other beneficiaries in a mediation – to decide on the estate’s division.
For this reason, it is advisable to ensure that a statement is included with the will, detailing why a particular person has been left out of the estate.
If possible, the statement should acknowledge the health and financial position of the parties, as these are things that the court will take into consideration.
If any of the eligible individuals who were excluded from the estate are badly off financially or suffering from poor health, relative to the other beneficiaries, the court will be more inclined to see that they are taken care of in the distribution of the estate.
The written statement will then go into evidence for the court in making its decision.
Drawbacks to contesting a will
While there are legitimate reasons to contest a will, it is essential to weigh the potential risks and consequences carefully.
Contesting a will can go badly in several ways, leading to undesirable outcomes for the parties involved.
The damage to relationships that arises is often permanent. Will contests are usually emotionally charged and divisive, especially when family members or beneficiaries are pitted against each other.
Legal proceedings involving will disputes can be expensive and often significantly reduce the estate’s assets. In some cases, the cost of litigation may exceed the value of the assets in dispute.
There are considerable time costs involved. The legal process is very labour intensive, requiring a lot of time from all parties. Legal proceedings generally take at least 12 months or even years to resolve, causing delays in distributing the estate’s assets and leaving beneficiaries in financial limbo.
Private concerns and the public record
Will contests are typically public proceedings, so details of the family’s disagreements and private concerns can become a matter of public record. This loss of privacy can be distressing for those involved and may attract unwanted media attention.
Contesting a will also involves dredging through family history – sometimes ancient family history – and can resurrect what is often quite painful emotional baggage for a lot of people.
All of these elements can take an emotional toll on the parties involved. The stress of litigation and family friction, combined with the grief of losing a loved one, can be very taxing mentally and emotionally.
How do I go about contesting a will?
The laws governing wills and estates are complex and the process of contesting a will or filing a family provision claim involves many regulations and timetables.
It is worth engaging a lawyer specialising in wills and estates who has experience litigating will disputes to help resolve the matter in a timely and cost-effective manner.
Alternative dispute resolution methods, such as mediation, are often the first step to contesting a will. This is preferable for preserving relationships and minimising the negative impact on beneficiaries.
The fact that so many wills are contested highlights the importance of careful estate planning and open communication within families.
By creating a clear and valid will that accurately represents your wishes, the likelihood of disputes can be minimised, and you will ultimately be saving your children and other beneficiaries a lot of grief and money.
Case study #1 – Stepmother changes will after father’s death
Two adult stepchildren are contesting the will of their father’s second wife. When the father died, he left his estate to his wife, the children’s stepmother, with the intention that the whole estate would then pass to them when she died.
However, the relationship between the children and the stepmother became acrimonious after the father’s death. The children had the Power of Attorney for their stepmother and sold the family home, forcing her to move into aged care accommodation.
She subsequently removed them as her Power of Attorney and changed her will, leaving them half of her estate, and giving the other half to her own family. The stepchildren are arguing undue influence and incapacity to make a will.
To ensure that capacity could be demonstrated, the lawyer videotaped both the process of receiving instructions from the stepmother, and then of reading the will back to her once it had been prepared.
If the court upholds the will, the stepchildren’s next step may be to launch a family provision claim (although the question of eligibility arises).
Case study #2 – Grandson omitted from will and mounts challenge
In a current matter, a grandson has lodged a caveat over the probate, as the last will of the deceased had cut him out entirely. He is challenging the will, which was prepared almost 10 years ago, questioning capacity and undue influence.
In the alternative (for example, if his first claim is denied), he is also bringing a family provision claim, alleging that as he spent one night a week staying with his grandmother, he was financially dependent on her and therefore is an eligible person.
While this matter is still progressing, the case law tends to show that small amounts of financial help do not amount to being “dependent”.
Case study #3 – Father’s tactic to prevent daughters inheriting expensive home
A client in his early 90s had a strong relationship with his son. They were in business together and were very close. He had divorced his wife many years earlier, and his two daughters had gone with the mother, while his son remained with him.
As a result he had very little to do with his daughters as adults. The father’s major asset was a very expensive home in Sydney. He wanted to ensure that when he died, the house would be left to his son, and that the daughters could not contest it.
He decided to bring his son in as a joint tenant on the property. This meant that on his death, the daughters were unable to dispute the estate.
Bringing someone in as a joint tenant on an existing property is an expensive way of protecting an estate, but in this case an effective one.
In saying this, it would be possible for the daughters to file a notional estate family provision claim on the basis that their father’s “failure” (as at the date of his death) to sever the joint tenancy ownership in the property amounted to a “prescribed transaction”, which has the effect of enabling them to “claw back” their father’s 50% ownership in the property as an asset to be contested in their claims.
Again, only NSW has such notional estate laws.
Case study #4 – “I leave it all to my favourite superhero”
The deceased had four children. He and his wife had mutual wills that had been drafted 50 years prior, passing everything to the children equally if they both died.
As it was, the wife died and dad went downhill in the years afterwards.
One of the children, a daughter, arranged for her solicitor to see her dad. A will was prepared, transferring the deceased’s family home to her, with the rest of the estate divided equally between all children.
The estate wasn’t a big one. The house was worth about $700,000 and the rest of the estate was worth about $100,000. This particular daughter didn’t own her own home.
Two of the grandchildren of the deceased were actually the executors of the will that the deceased had around the time his wife died.
They were concerned about the behaviour of this particular aunt, the daughter of the deceased, and had an inkling she was taking advantage of her father at a time when it was fairly obvious his mental capacity was deteriorating.
Following a chat with a solicitor regarding capacity proceedings which might take place following their grandfather’s death, they made up some fanciful wills which the deceased signed. (These were wills appointing the likes of Donald Duck as executor and leaving the estate to his husband, Superman.)
The old man died and capacity proceedings were commenced. He had actually signed the fanciful wills within a couple of weeks of the real will he signed, leaving his house to the opportunistic daughter.
The fact that the deceased had signed the absurd wills gave a strong, proximate indication that he did not have capacity to sign a will at that time, as he did not know or comprehend what he was signing.
Ultimately, the penultimate will dividing everything equally between the four children was upheld as valid.
Obviously the family was not the same afterwards.
Case study #5 – Futile claim against father’s estate
A man had two daughters.
One of the daughters paid for half of the property owned by her father and he lived in that home for many years. The man was very close to this daughter, whereas his relationship with the other daughter was not a strong one.
The estate consisted of a house and not much else.
The man left a will which excluded the other daughter. The residue of the estate was left to the daughter who had allowed him to live in the house for all those years (noting that he had contributed half of the cost).
The sisters disliked each other. Legal proceedings were commenced and the excluded sister ultimately received $20,000 from the estate, despite many months of litigation. That entire sum would have been spent on legal costs.
Case study #6 – Brain tumour affects mental capacity and causes delusions
A man who died had been married to his second wife for 25 years. He had five children from a previous relationship and his wife also had children from a previous relationship.
The man had an old will which left his whole estate to his wife.
The man fell ill. He developed a big meningioma in his brain which affected his mental capacity. He started “seeing things” in the paddocks (they lived on a farm) and thought people were coming into the house to steal bedsheets.
He would accuse his wife of many things that were clearly untrue.
His children came onto the scene, despite not seeing their father for some 20 years. Miraculously, a will was made which left most of the estate to the children.
The wife commenced a claim. Medical evidence was subpoenaed to show that the meningioma in his brain was the size of a mango and that such tumours are known to affect decision-making and often cause delusions.
It was ultimately agreed that the penultimate will which excluded the children was the valid will.
For more information on estate planning, please see the articles below.
Power of Attorney and Enduring Guardianship – the horror story edition
How do you choose an executor for your will? – the horror story edition
Can an adopted child challenge the will of adoptive parents?
