Contesting a Will? What do You Need to Know

Before you can contest, you must be eligible.

Up until the legislative reforms of the Act, which came into effect on 1 January 2015, Victoria was arguably the most flexible state in Australia for people claiming a Will. The eligible people were not specified, so anyone who believed that the deceased person was obligated to provide them with some maintenance could make a claim.

However, at present, the new legislation provides that the application for a family provision order may only be made by or on behalf of an eligible person as defined as 

• The spouse or domestic partner at the time of death;
• A child of the deceased (including an adopted or step-child or someone who believed the deceased to be their parent and was treated as such) who, at the time of death, was:
  • Under the age of 18;
  • A full-time student under the age of 25;
  • Suffering from a disability
• A former spouse or former domestic partner of the deceased if the person, at the time of the deceased’s death, would have been able to make proceedings under the Family Law Act 1975 of the Commonwealth and has either
  • Not taken those proceedings; or
  • Commenced but not finalised those proceedings because of the death of the deceased
• A child or stepchild of the deceased not referred to above (ie, adult children)
• A registered caring partner;
• A grandchild;
• The spouse or domestic partner of a child (ie, son or daughter-in-law) of the deceased where that child has died within one year of the deceased’s death;
• A person who was or had been (and was likely to be shortly) a member of the deceased’s household.

How long do I have to contest a will in Australia?

The time limit to challenge a Will in Australia is different depending on the state in which you live.

• NSW and ACT, you have 12 months from the date of death to lodge a claim in Court.
• Victoria you have six months from the date of the grant of probate to lodge a claim in Court.
• Queensland, you have six months from the date of death to notify the executor of a claim and another three months to lodge the claim in Court.
• Northern Territory, you have 12 months from the date of the grant of probate to lodge the claim;
• Western Australia you have six months from the date of the grant of probate to lodge a claim in Court.
• Tasmania, you have just three months to file a claim in Court from the date of the probate grant.

What the Court takes into consideration?

In making a family provision order, the Court considers:[2]

1. The deceased’s Will;
2. Evidence of the deceased’s reasons for making the Will in the terms they did;
3. Any other evidence about the deceased’s intentions with respect to the claimant, including:
   • Family relationship between the deceased and the applicant;
   • obligations/responsibilities the deceased had to the applicant in the past;
   • any physical, mental, or intellectual disability of any applicant or beneficiary;
   • the character/conduct of the applicant

Also, in determining the amount of provision to be made by a family provision order, the Court considers:

1. The degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person:
   • So, whether the deceased person was maintaining the applicant before that person’s death and whether the deceased had assumed that responsibility;
   • the financial resources and financial needs of the applicant;
   • the age of the applicant
2. The degree to which the distribution of the deceased’s Estate fails to make adequate provision for the proper maintenance and support, including;
   • the size of the Estate and liabilities;
   • any contribution of the applicant to building up the Estate or the welfare of the deceased/deceased’s family

You can’t contest the division of assets which are not part of a Will

Not every asset of a deceased is considered part of a deceased’s Estate. Instead, there are ‘estate assets’ that can be included in a will and ‘non-estate assets’ that cannot.

Estate assets are a broad rule of thumb, including anything the deceased has sole ownership over. This includes:

• Any real property, i.e., real estate, land, and buildings.
• Unproductive property, i.e., valuables such as motor vehicles, jewelry, and furniture.
• Cash of any kind, i.e., savings, term deposits.
• Intangible personal property – items that cannot be held but are of worth, i.e., stocks, business ownership, and digital assets (Facebook, Twitter, Instagram).
• Intellectual property, i.e., patents, copyrights, royalties.

On the other hand, non-estate assets are things that the deceased does not have legal ownership over or joint ownership with another party. Examples of such assets include:

• Jointly owned assets – both real and personal property
• Discretionary/Family Trusts
• Company Assets
• Life Insurance
• Superannuation

For example, irrespective of the testator’s Will, if the testator owns a home with their spouse as joint tenants (joint proprietors), upon the death of the testator, complete ownership will automatically revert to the surviving spouse. This means that the house cannot be considered part of the Estate and, as the Will does not govern it, cannot be contested. The property title trumps all.

The same applies to life insurance and superannuation. Both operate so that the testator nominates the beneficiary of their policy, and the policy is then paid directly to the stipulated beneficiary or beneficiaries. Again, as this does not form part of the Estate, a contest is not within the scope of the Act.

Why is it essential to have a good lawyer to contest a will?

Ideally, you’ll want a professional who will work with you and your specific circumstances—but how do you find that person? The answer may seem obvious: our lawyers are here to help. We also have experienced lawyers who practice in estate dispute matters and can assist you should a claim be made against the Estate. We have successfully represented executors and trustees administering the Estate and family members who wish to bring a claim against the Estate.

1. Experience—our lawyers have successful experience handling similar will disputes such as yours, so share your unique details and ask us all your burning questions.
2. Confidence—You should feel like you’re in good hands throughout this challenging time, and our lawyers can become your trusted guide.
3. Convenience—your case could be a quick open and shut, or it could take over a year to resolve, so consider using a local wills and estate law firm so that it’s convenient for you. We work locally on the Gold Coast and in Melbourne but serve clients Australia-wide. 

Feel free to contact us for any of the above mentioned matters or any other matter. Email us today at admin@kingsfordlawyers.com.au or contact us for an obligation-free chat at 1300 244 342, and one of our lawyers will guide you through the process.