3 Grounds You Need to Know When Contesting a Will

Contesting a Will relates to commencing a family provision claim against the provisions of the Will and the distribution of the estate.

There are three (3) main categories for contesting a Will:

1. Financial Need: The claimant must establish that the provision made for them in the Will is inadequate for their support and maintenance. They must demonstrate financial need and show that the deceased had a moral obligation to meet that need, which was not fulfilled by the existing provisions.
2. Relationship: The Court considers the relationship between the claimant and the deceased. If the two had a supportive relationship or if the deceased made promises or owed responsibilities to the claimant, it can be grounds for contesting the Will.
3. Applicant’s Circumstances: The Court examines the claimant’s circumstances, including their financial resources, age, character, conduct, and any disabilities that impact their ability to earn income or increase their cost of living.

The basic premise to be eligible to contest the Will is to prove the application was financially dependent on the deceased, and they lived in the deceased household at some point in the past.

The main criteria to be eligible to contest the Will is as follows:

1. The deceased’s spouse or de facto partner and are able to demonstrate financial dependency on the deceased during their lifetime;
2. The deceased’s child (including adopted and stepchildren) under the age of 18, or able to demonstrate financial dependency on the deceased during their lifetime;
3. The deceased’s former spouse or de facto partner who was receiving ongoing financial support from the deceased during their lifetime;
4. The deceased’s grandchild and are able to demonstrate financial dependency on the deceased during their lifetime;
5. The deceased’s parent and are able to demonstrate financial dependency on the deceased during their lifetime;
6. The deceased’s siblings;
7. Someone who was wholly or partly dependent on the deceased at the time of their death and able to demonstrate ongoing financial dependency; and
8. Someone who was in a close personal relationship with the deceased at the time of their death.

However, there are also several other eligibility criteria that do not fall in the standard criteria:

1. A beneficiary that believes the Will does not accurately reflect the testator’s intentions or they believe they were unjustly excluded from asset distribution of the estate.
2. An executor or trustee of an estate, but contest that a subsequent Will has diminishes or removes their role.
3. A creditor of the deceased and you believe that it negatively impacts your ability to collect debts owed to them by the deceased.
4. A caregiver or dependents who provided care or support to the testator and believe they were promised or entitled to a share of the estate can contest a Will if they are not adequately provided for in its terms.

A claim to contest a Will has a time limit of 12 months after the deceased death or the Grant of Probate. There are limited circumstances in which the Court will consider if an application is made outside of the 12-month time frame.

When determining the outcome of the family provisions claim, the Court will consider:

1. The nature and duration of the relationship between the claimant and the deceased;
2. The nature and extent of any obligations or responsibilities of the deceased;
3. The nature and extent of the estate;
4. The financial resources and financial needs of the claimant, any other applicant for family provision and any beneficiary;
5. The financial circumstances of any person with whom the claimant is cohabiting;
6. Any disability of the claimant, any other applicant or any beneficiary;
7. The age of the claimant;
8. Any contribution by the claimant to the deceased’s estate or the deceased’s welfare or that of the deceased’s family;
9. Any other provision given to the claimant;
10. The testamentary intentions of the deceased;
11. The extent and basis upon which the claimant was maintained by the deceased;
12. Whether any other person is liable to support the claimant; and
13. The claimant’s conduct and character.

Should you believe that your claim would fall within one of three (3) categories and are entitled to make an application for a family provision claim, we would work with you to prepare your matter and to outline the further evidence and information that we would require to assist you in making an application for a family provision claim which needs to be made within 12 months from the date of death of the deceased.