Are contest rules the same for same-sex partners?

PUBLISHED 27 Feb 2020

If a family member has died and you haven’t received an inheritance, you may wonder if you have the right to contest a will or lay claim to an estate. When it comes to such disputes, two main factors will determine if you have a case: whether or not a will exists (and how it was constructed), as well as whether you have pertinent rights under the relevant Succession Act.

Who can challenge a will?

If you want to dispute a will, you will have to be able to demonstrate a personal connection to the deceased, prove there was a “moral dependence” and show that such dependence has been wholly or partially unfulfilled. You can contest a will if you were, at the time of the deceased person’s death:

  • Their husband or wife
  • Their former husband or wife
  • In a de facto relationship with them
  • Their child or adopted child
  • A grandchild who was a member of their household and wholly or partly dependent upon them at any time
  • A person living in a close personal relationship with them, meaning two (related or not) adults living together with a provision of domestic support and personal care

Your need for provision from the deceased’s estate will also be examined.

On what grounds may a will be contested?

A will can be challenged if you believe that:

  • You are entitled to more from the estate than you received
  • At signing, the deceased did not have the capacity to make a will
  • The deceased made the will under the influence of others

Is there a time limit to contest a will?

Time limits for challenging a will in Australia vary from state to state, but generally, you must bring a claim – or at least notify other parties to the will that you intend to do so – no more than six months after the initial execution of the will. In some regions, the time limit may be as long as 12 months, but no matter what, it’s best to consult a lawyer as soon as possible if you plan to contest a will.

What if the deceased left no Will?

If the deceased died intestate and left no will, you have a good chance of contesting based on the factors mentioned above. The Succession Act will be relied on heavily by the court, as well as the level of need shown by each plaintiff.

How long does contesting a will take?

In many cases, the wills disputes team at Gerard Malouf & Partners can settle your claim with a deed of settlement: a legally enforceable document that lays out the revised terms of inheritance distribution. This entire process can often be handled in two to four months. If a new settlement can’t be reached, there will be a court summons – which may trigger formal mediation, so actual court appearances won’t be needed.

Mediated settlements can be concluded in around four to six months. If your claim goes to court, it may take up to 12 months to settle, depending on the number of parties involved and the complexities of your case.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.