Circumstances where you may be able to challenge a Will

Inadequate Provision

One of the most common reasons a person would challenge a Will is where that person feels like inadequate provision was made for them by the deceased.

In Australia a person making a Will has the right to give their estate to whomever they wish. However if upon their death, an eligible person (see below for the meaning of an “eligible person”) feels like the Will is unfair or unjust they can challenge the Will and make a claim in that regard.  For example where a person who would have expected to inherit under the Will suffers financial hardship because they were not left with an adequate inheritance provision, then that person may have the right to challenge the Will.

The law that governs your ability to challenge a Will is the Inheritance (Family Provision) Act 1972. This act allows an eligible person to challenge a Will and for the Court to award an eligible person part of the deceased’s estate. A claim can also be made in relation to a deceased person who has died without a Will.

Pursuant to Section 6 of the Inheritance (Family Provision) Act 1972 the following people are entitled to make an Inheritance (Family Provision) claim (“eligible person”):

• the spouse of the deceased person;
• a person who has been divorced from the deceased person;
• the domestic partner of the deceased person;
• a child of the deceased person;
• a child of a spouse or domestic partner of the deceased person being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his death;
• a child of the child of the deceased person; a parent of the deceased person who satisfies the court that he/she cared for, or contributed to the maintenance of, the deceased person during his/her lifetime;
• brother or sister of the deceased person who satisfies the court that he/she cared for, or contributed to the maintenance of, the deceased person during his/her lifetime.

For the Court to award an eligible person part of the deceased’s estate, that person would have to be able to prove that the deceased failed to adequately provide for that person’s proper maintenance, education or advancement in life. An application would not succeed just because an eligible person believes the intended distribution of the estate to be unfair.

The Court will also take into consideration:

• the size of the estate;
• the age, health and financial position of the eligible person;
• whether the deceased was able to build his or her estate due to substantial input made by the eligible person;
• the relationship between the eligible person and the deceased.

An Application under the Inheritance (Family Provision) Act 1972 must be made (and served on the Executor/s or Administrator/s) within six months of the grant of probate or letters of administration.  

Deed of Family Arrangement

A deed of family arrangement is a document which outlines an agreement between parties who have an interest in an estate, usually between the beneficiaries and the executors.

All parties to the Deed must be adults and have full mental capacity.

The deed is used either where all parties have agreed to alter the terms of the Will, for whatever reason, or where there is a disagreement over a Will and the parties are able to reach an agreement/settlement without the need to go to Court (or Trial) as outlined in more detail above.

A deed of family arrangement may have stamp duty and capital gains tax implications and you should obtain independent financial advice with regard to this.

Invalid Will

The final way to contest a Will is to prove that the Will is invalid.

In this situation the person may contend that the Will was not intended by the deceased to be her or his last Will and testament.

Some valid circumstances where such a position may be considered:

• There was a newer Will signed by the deceased;
• The deceased did not have the mental capacity to make a Will;
• The deceased did not understand what he or she was signing (i.e. the Will needed to be interpreted by an Interpreter before signing and was not);
• The deceased was pressured into making the Will;
• The signature on the Will was forged.

Section 25AA of The Wills Act 1936 (SA) gives the Court the power to rectify a Will where the Court finds that a Will does not accurately reflect the intentions of the deceased. In this situation the Court may order that the Will be rectified to properly express the intention of the person making the Will.

The court will interpret the words in the context in which they appear in the Will and according to their usual meaning. The court will not accept evidence about the intention of the deceased based on a statement by the deceased to a beneficiary that she or he would be receiving a particular gift.

This Application must be made within 6 months after the Grant of Probate.     

In Conclusion:

Please note that the above is not an exhaustive list of the circumstances where you can challenge a Will.

If you are in this situation and would like clarification in relation to your rights as an eligible person to challenge a Will, please do not hesitate to contact us on (08) 8312 4800.

Alternatively, if you have concerns relating to your estate and potentials claims, we can also provide advice in this regard.