Mourning the death of a loved one can bring about considerable mental strain. However, feeling as though you’ve been unfairly excluded from or inadequately provided for by a deceased relative — even if you were estranged for some time — can cause just as much pain.
To get a better sense of will contestation in Australia, let’s discuss what exactly contesting wills means, what can happen if a contestation fails, some real-life examples of successful disputes and how seeking legal recourse may give you the upper hand and increase your chance of a successful claim.
What does contesting a will mean?
In cases where valued family members feel as though they have been unrightfully left out of a will, are entitled to a piece of an estate or have received inadequate provision, they may choose to contest it.
When contesting a will, the person who brings about the claim is looking to receive some — or more — of the deceased estate than what was originally outlined for them before the passing of the testator.
Who can contest a will?
Regulations and precise definitions surrounding who is eligible to contest a will vary by state. In general, however, eligible persons usually include the spouse or former spouse of the deceased and anyone who was wholly dependent on the deceased, such as their children or grandchildren.
In NSW, family law under the Family Provision Act 1982 No 160 defines an eligible person, in relation to the deceased person, as follows:
- A person who was the wife or husband of the deceased person at the time of the deceased person’s death, or with whom the deceased person was living in a domestic relationship at the time of the deceased person’s death.
- A child of the deceased person or, if the deceased person was, at the time of his or her death, a party to a domestic relationship, a person who is, for the purposes of the Property (Relationships) Act 1984, a child of that relationship.
- A former wife or husband of the deceased person.
- A person who was, at any particular time, wholly or partly dependent upon the deceased person.
- A person who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of a household of which the deceased person was a member.
In short, eligible persons include the deceased’s current or former spouse, their children or grandchildren and any other fully or partially financially dependent persons.
Why a case would be unsuccessful
Contesting a will is a more difficult process than many people think. For any case to be successful, you must have sufficient ground to stand on.
There are not many legal obligations that testators are held to in terms of how their wealth and properties are distributed after they pass. Because of that, any proof that’s brought before involved parties to settle out of court, or, in some cases, a judge, must be abundantly clear.
Given the complicated nature of will contestations, having a knowledgeable and experienced estate lawyer to guide you through your case is highly advised. With the proper support, we can gather and vet your proof as well as advise you on the best possible next steps that may increase your chances of success.
The majority of will dispute cases settle outside of court, however, if an agreement cannot be reached, the case will be brought before a judge for a final decision.
Alternailty, if a person dies without having made a will, their estate is disposed of according to a predetermined formula outlined in Part 4 of the Succession Act. This usually means that the spouse of the deceased is entitled to the whole estate, unless there are children to consider as well.
How to increase your chances of success
Now that we know sufficient ground and proof are always required for a chance at a successful will dispute case, let’s have a look at what some of those items should include.
If you are considering a will contestation, you should be able to demonstrate the following criteria:
- You must be an eligible person as defined by law.
- You must exhibit financial need.
- You must be able to prove that the deceased should have made provision for you.
Alternatilty, if you believe that the testamentary capacity of the deceased was compromised at the time of writing their last will and testament, you may have a greater chance at securing more adequate provision from the estate.
If these items cannot be proven, or will be very difficult to prove, it may greatly decrease your chance of winning the case. If you’re unsure whether the proof you have is adequate, give us a call for free, no-obligation legal advice. An estate lawyer can help you determine whether or not you have a viable case on your hands, and how to proceed.
Timelines to contest a will
Each state has a timeline in place in which a dispute must be initiated before it becomes nullified and can no longer be opened. Once that cutoff time expires, there is nothing else that can be done in terms of initially filing the claim. For that reason, the sooner you start, the better.
- In New South Wales, a claim must be brought to court within 12 months.
- In Victoria and the Australian Capital Territory, the timeline to dispute a claim is within 6 months.
- In order to file a claim with the District Court of Queensland or the Supreme Court of Queensland, you have 9 months from the date of death of the testator, but must give notice of your intention to do so within 6 months.
It’s important to note these cutoff times based on where you live and take action before you lose your chance.
To ensure that you meet all eligibility requirements to contest a will and that you have all the necessary proof to increase your chances of success, seeking legal recourse is in your best interest.
What happens when contesting a will fails
If a will contestation is unsuccessful, the person who initially brought about the dispute may be left without compensation or additional provision from the deceased estate. The success of these cases relies on your eligibility, meeting outlined criteria, the executor fulfilling their responsibilities justly and seeking legal recourse for expert support and guidance throughout the process.
What happens if the executor refuses to defend the will?
The executor is the person responsible for governing an estate as wished by the person who has passed away. In Australia, anybody can be appointed as an executor so long as they meet these two requirements:
- They are over 18 years of age.
- They are of sound mind.
When appointed as an executor, you have full responsibility to carry out the duties that come with the role. In some cases, the named executor may forfeit their eligibility if they’re found to endure any of the following:
- They have been convicted of a felony (after being appointed).
- There is a conflict of interest.
- They have unsuccessfully carried out duties as wished by the deceased.
- They have aborted the responsibility altogether, failing to distribute the estate at all.
- They have mismanaged the estate by stealing from it or wasting assets.
An executor may also be reappointed if the chosen candidate refuses to abide. If this is the situation, another beneficiary can make an application to the court to step up as executor. Alternatively, an estate trustee company can take over.
How do you stop someone from contesting a will?
Across Australia, there is very little that a testator can do to guarantee the prevention of any estate disputes — especially if they have adequate ground to stand on. However, there are a few strategies that may decrease the chances of someone filing a dispute. Here are a few examples:
- Make adequate family provisions: This is especially important to do for anyone who might successfully contest a will. It does not mean that you must make equal provisions for all beneficiaries, but adequate provisions, taking personal circumstances into account.
- A no-contest clause: This type of clause is a tool that disinherits a beneficiary if he or she challenges the will, and loses, after the testator’s death. A disinherited heir is prevented from receiving any property or assets after the death of the testator. A no-contest clause does not wholly guarantee the prevention of a contested will, but it may help to reduce the chance.
- Reduce your assets: If there’s a beneficiary that you wish to exclude from your will, but would be eligible to contest it with a decent chance of success, you can offload your assets to specific parties. By doing this, these assets will not be part of your estate, and therefore, ineligible to be redistributed. Reducing your assets is a tricky strategy that needs to be done with the utmost care. If you’re wondering whether or not it’s the right move for you, reach out to Gerard Malouf & Partners for advice.
Real-life examples of successful will contestations
Our experienced estate lawyers have helped beneficiaries receive provisions that they’re entitled to. Here are a couple of examples of recent successful cases that we achieved for our clients:
Granddaughter Gets Over $100K After Contesting Late Grandmother’s Estate
Growing up, our client had a close relationship with her grandmother. For all intents and purposes, she was a steadfast maternal figure for our client when her biological mother was absent for most of her teenage years. Our client often turned to her grandmother for maternal support.
When our client’s grandmother passed away in 2021, she left her estate to her daughter, our client’s mother. The estate was valued at approximately $600,000 and consisted mainly of the proceeds of a sold property.
Our client was financially in need of assistance. She had limited assets and savings, and a growing young family to provide for. Our client sought provision out of the Estate to pay off debts, and to put funds towards the deposit of a home, to provide a stable environment for her children.
Shortly after commencing legal proceedings, we requested the parties participate in a mediation. Our client was extremely happy with this result as it provided her with financial security for her future.
Lifelong Friend Reimbursed for His Support in the Case of Promissory Estoppel
Our client was a lifelong friend of the deceased who provided him with ongoing care and support. This included driving him to appointments, providing him with companionship, buying groceries and cleaning his home. The deceased made repeated verbal promises that he would be provided for in his will, as a thank you.
When he eventually passed away, our client was shocked to discover that there was no will at all, and that he would not be reimbursed by the deceased’s estate. Our experienced estate lawyers quickly recognized that this may be a case of promissory estoppel.
In this case, our client had an ongoing friendship where he provided care for the deceased. During the course of their friendship, the deceased promised that if he continued to provide care without being reimbursed for his time and efforts, he would be provided for out of his will when he passed away. On this basis, our client continued to provide a high level of care.
It is possible to achieve a result even if you are not a family member and there is no will. It is difficult, but in limited circumstances, we have been able to establish that our clients meet the following criteria:
- There is a long-term relationship between yourself and the deceased.
- There was an ongoing reliance on your care and support from the deceased.
- It was the wishes of the deceased for you to receive a benefit from the estate, forming a verbal contract.
Adult Child Gets $120K Compensation After Contesting Mum’s Queensland Estate
A client contacted Gerard Malouf & Partners for advice on contesting a Queensland Estate. Our client’s biological mother had passed away intestate, without leaving a will.
The client approached GMP Law because they were concerned that, due to the rules of intestacy, his mother’s husband, from whom she had been separated for 20 years but never divorced, would receive the entirety of the estate. That consisted of a property in Queensland which had an estimated value of $360,000. The client was worried that he would receive nothing.
This client was financially in need of assistance. He had six children, all under the age of 16 years, for whom he had to provide. He also had a mortgage and he was struggling to make the monthly repayments.
Court proceedings were commenced in the District Court of Queensland and a Mediation took place shortly after with all the parties. The client was happy with the outcome, which made a significant contribution towards paying off the mortgage and moving his daughter back to Australia.
For more case studies on our successful estate disputes, click here.
How do you demonstrate financial need?
There are a few ways that financial need can be demonstrated to potentially increase your chance of success when contesting a will. As these case studies have outlined, some examples include:
- Showing proof of any debts (mortgages, for example).
- Having one or more dependents (children).
- Showing proof that you’re struggling to meet your basic needs.
The value in seeking legal advice for will disputes
The laws and regulations that surround will dispute claims and contestations are complicated. Many rules, criteria and requirements vary from state to state, and even still, commonalities in legislation can be arduous.
Whether the will and estate in question has a no-contest clause, you’ve been disinherited or you’re fully eligible to contest the will with a great chance for success, legal advice from Gerard Malouf & Partners can help guide you in the right direction. With a No Win, No Fee approach, you won’t owe legal fees until we’ve won your case.
If you’re considering contesting a will or would like to talk through your options, the estate lawyers at Gerard Malouf & Partners can advise you on your best course of action. For free legal advice and a no-obligation consultation, give us a call at 1800 004 878 or fill out this form to get in touch.