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How to Contest a Will: Answers to Your Questions

How to contest a will, who can contest a will and what are the grounds for contesting a will are among some of the most common questions we get asked.

Making a will that sets out your wishes for what is to happen after you pass away is incredibly important. However, even the best drafted will can be contested. That’s because the law gives certain eligible people a right to contest a will, if they can satisfy the court that they were not adequately provided for in the circumstances, to have the will to be varied in their favour.

When a will is contested, the Court is asked to vary the will so as to make further or different provision for a beneficiary.  It is a essentially a re-write of parts of the will.

The process of figuring out whether you can contest a deceased family or friend’s will can be complicated. Below we answer some of your questions about what happens when someone contests a will.

What is the difference between “contesting a will” and “challenging a will”?

There is a difference between contesting a will and challenging a will. Generally, people will want to contest a will – that is, they want to argue that they have been left out of a will but they should not have been, or that they have not been sufficiently provided for, and that they should be entitled to a greater share of the deceased estate.

In contrast, you would challenge a will where there is some reason why you believe the will is invalid, most commonly because of concerns that the person lacked mental capacity to know what they were doing at the time the will was made. If a will is successfully challenged the court will rule that it is invalid and that the rules of intestacy should guide how the estate is distributed instead.

Can a will be contested?

It is legally possible to contest a will. A will cannot exclude this right by saying that it cannot be contested.

However, there are limits: only eligible persons can contest a will, and proceedings to contest a will must be commenced within specified time limits (unless a court permits an extension of time).

More significantly, just because a will can be contested it doesn’t follow that a Court will make an order varying the will.  Increasingly Courts have upheld wills and declined to make Orders.

Who can contest a will? Can I contest my father’s will?

Only “an eligible person” can contest a will.  The list of who is an eligible person varies a little bit by state to state.  In NSW eligible persons are  spouses (including de factos), former spouses, children, grandchildren who were or had been dependent on the deceased, other persons who were or had been dependent upon the deceased and lived with them as a member of their household,  and other persons who lived with the deceased in a close personal relationship at the time of death.

A will cannot exclude these people from having the right to contest the will. However, if a deceased person left behind evidence, for example, a statutory declaration, explaining why they have excluded a person from their will, this evidence can be considered by the court if the person makes a family provision claim.

On what grounds can I contest a will?

The grounds for contest a will in NSW are established by the Succession Act.  Other states have comparable laws.

When hearing an application to vary a will in favour of an eligible person the Court considers whether the will makes “adequate provision for the proper maintenance, education or advancement in life of the person.” When deciding this question the judge can consider a range of factors, including the personal circumstances of the applicant, such as their age, their financial position and the financial position of their spouse or partner, if they suffer from any disabilities and whether the applicant was provided with anything during the deceased’s lifetime.

Critical to the determination will be the nature of the relationship between the applicant and the deceased. This involves consideration of whether a provision would ordinarily be made to a person in the position of the applicant, the character and conduct of the applicant both before and after the death of the deceased and in the case of a strained relationship between the applicant and the deceased, the origins of the disagreement. These issues are also viewed in light of the size and nature of the assets making up the deceased estate. Whether a Court will decide to vary a will by granting a Family Provision Order is heavily dependent on the facts of the particular case.

What happens when someone contests a will?

If you decide to contest a will, the executor of the deceased’s estate will have to defend that contest in court. Applications for a Family Provision Order varying a will are heard in the Supreme Court .

Can you contest a will if you are in it?

Yes, provided you are an an eligible person.  You can contest a will if you are already a beneficiary of a will but think that you should have received a larger or different entitlement.  Indeed, a common claim is where a child of the deceased has received a small or nominal amount, and believes that they should have received a greater amount.

If you have received money or other property under a will but you are not an eligible person, you cannot contest the will to receive a greater amount.

What is the cost of contesting a will?

Segelov Taylor acts on a ‘no win no fee’ basis for individuals in family provision claims. This means if you are not successful you will not be charged for our costs incurred in litigating the claim.

However, if you are not successful in your claim you may be ordered to pay the executor’s costs.  It is therefore important that you seek legal advice as to the merits of any claim before commencing proceedings.

How long do you have to contest a will?

There is a time limit to contest a will.

  • In NSW, an application for a Family Provision Order varying a will needs to be made within 12 months of a person’s death.
  • In Queensland, an application must be commenced within 9 months of a person’s death.
  • In Victoria and South Australia, an application must be commenced within 6 months of a grant of probate.

Court have discretion to extend that period, but you will need to provide sound reasons as to why you did not make an application within the time limit.

How long does it take to contest a will?

This will depend on how complex your case is and the nature and extent of the deceased estate. Most cases settle before they are decided in court by a judge. This may occur within a few months of commencing your claim. If your case does proceed to judicial determination, then you can expect that it will be finalised within 1 to 2 years of proceedings being commenced.

Can a stepchild contest a will?

The Succession Act provides that children of a deceased have an entitlement to contest the will. This includes biological and adopted children but not stepchildren. However, the law allows anyone who was wholly or partly financially dependent upon the deceased at any particular time and lived with them as a member of their household at that time to contest a will. Stepchildren may fall into this category.

The court will need to make an assessment of your personal circumstances to decide whether you were financially dependent on the deceased. For example, you might have been financially dependent on a deceased stepparent if you lived with them while your biological parent was not working. However, there are a range of possible scenarios that can amount to whole or partial financial dependence. If this is established, the court will determine whether the will should be varied to provide for a stepchild.

If you think you may be entitled to contest a will get in touch by email david@segelovtaylor.com.au or by phone (02) 8880 0500.

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