In Australia, the grounds for contesting a will are fairly narrow. To contest a will, you typically must be able to prove a certain type of relationship to the deceased to show you are an “eligible person,” as well as an obligation on the part of the deceased and a need on your own part. Alternately, you must be able to prove that the decreased was under duress when they made their will, or not in their right mind.
What is an eligible person?
To be deemed an eligible person for the purposes of contesting a will, you must be one of the following:
- The wife, husband, life partner or de-facto partner of the deceased person at the time of their death
- A former wife or husband of the deceased
- A child of the deceased, or a child of a domestic relationship with the deceased
- A person who both was at any time,wholly or partly dependent upon the deceased person and either a grandchild of the deceased or at any time a member of a household along with the decedent
If you can prove any such relationship, you may have a Family Provisions Claim based on moral obligation.
How do I prove moral obligation?
You must show to the court that because of your relationship to the deceased person, there was a moral obligation on them to provide for your:
- Advancement in life
If your financial situation and position in life demonstrates a significant level of unmet need, the deceased should have provided you with a legacy that would allow you to struggle less in life or provide better for your own family. If you and the deceased were estranged, the court will take this into account as well. Furthermore, if someone else convinced the deceased to cut you out of their will, the court must determine if the deceased was doing so willingly or under duress (or while not in a sound frame of mind).
What “need” must be established?
In Family Provision Act claims, the court attempts to identify if the appropriate maintenance, education and advancement in your life has been provided for under the terms of the will. If you have significant financial burdens, medial expenses, living expenses, or education costs, the court may find that need has been established and the will should be altered. Conversely, if you are well-off and have no significant need to be financially bettered, the will may be left as is.
If you are seeking to contest a will, contact Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers.