Contesting a Will in Australia can be done after the Will-maker has passed away. Contesting a Will is not the same as challenging a Will. A Will is challenged when someone claims that it is invalid. This is because formal requirements were not met.
By contrast, contesting a Will in Australia is when someone believes that they were not sufficiently provided for in the Will. A Will is a legal document that allows someone to express their preferences for their estate when they pass away.
Contesting a Will in Australia involves a beneficiary. Everyone has a different, personal cause for contesting a Will. Some of the most prevalent reasons include financial need, family issues, or uncertainty in the Will’s terms.
Who Is Eligible For Contesting A Will In Australia?
Every state and territory in Australia has a law that permits some persons to contest a Will. Although, the conditions for eligibility vary. In certain states, a grandchild is immediately qualified to dispute a Will. Whilst in others, a grandchild can contest a Will only if they were previously financially dependent on the testator i.e. the Will-maker.
Contesting a Will in Australia involves demonstrating that you are a qualified individual. The precise definition of an eligible person varies by jurisdiction. However, it often includes the deceased’s spouse and any dependents they may have had. For example, The Family Provision Act 1982 in New South Wales (NSW) lists the following persons as being eligible:
Current Or Former Spouses
This includes anyone who was the deceased’s spouse or wife, including those from divorced or annulled marriages. A de-facto partner or a life partner who was lawfully married to the deceased is also an eligible individual.
A de-facto partner is someone who lived with the deceased for a lengthy period of time without separation. This period is generally at least two years. There is no official record of partnership status like there is in a marriage. For this reason, a de-facto partner or life partner will often have to produce evidence of domestic living.
The Deceased’s Children Or Grandchildren
This category includes biological children and grandkids. Furthermore, it includes stepchildren and domestic partners’ children.
Any Other Dependents
A person who was fully or partially financially dependent on the deceased may be eligible in exceptional circumstances. Contesting a Will in Australia is possible even if you don’t fit the eligibility standards. This is if you can establish that the deceased didn’t keep the promise of giving you something in their Will. A lawyer can help you figure out if your connection to the deceased qualifies you for benefits.
What Factors Does A Will Contest Use?
In addition to proving eligibility, you must be able to show the court that the deceased had a moral obligation to financially support you. The deceased’s spouse or children typically assume moral responsibility.
It may be more difficult if the deceased estranged the claimant for a long time. There are ways to successfully contesting a Will in Australia. First, one must demonstrate a financial need or that the deceased caused financial harm.
In addition to that, they have to demonstrate that the deceased had a moral commitment to them. This This is usually linked to some degree of financial dependency on the deceased.
Demonstrating financial need is crucial when a claimant is seeking to argue that a Will distributes assets unreasonably. The following are the most essential considerations that a court may examine while ruling on a case:
- Your whole financial requirement.
- Your connection to the departed.
- Any duties you owe to the deceased.
- Your financial situation.
- Any physical, intellectual, or mental disabilities
Read: How To Stop Your Estranged Child From Challenging Your Will
Contesting A Will In Australia: Burke & Burke (2015)
Unfortunately, there are instances when family members have a falling out. This happens frequently between parents and adult children. This can generate significant problems when it is time for the parents to write their Wills.
There is a recent judgement from the NSW Court of Appeal. This ruled that there is no universal legal concept that provides for an estranged adult child in financial need. Despite the fact that the boy was in severe need of funds, the court refused to give him any. In an earlier judgement, the Court did provide for such a child, albeit only a small share of the inheritance.
The behaviour of the child towards the Will-maker must be carefully examined. There is no clear solution, but the Court’s ruling suggests that an adult child can be excluded from a Will in suitable circumstances.
Minimising The Chances Of Someone Contesting A Will In Australia
There are fundamental techniques for reducing the risk of someone contesting a Will in Australia. One example is to make suitable provisions for anyone who would otherwise successfully contest. Beneficiaries don’t need to receive an equal distribution. equal Instead, do what a reasonable testator would do in the same scenario.
It’s important to write down each beneficiary’s needs. Moreover, add a rationale for the allocation based on their present and future needs. The ultimate test is whether you have provided for the child or family member in a reasonable manner.
Another alternative is to ensure beneficiaries jointly own the property. When one of the joint owners passes away, ownership of the asset passes to the remaining owner. The deceased’s inheritance doesn’t include this.
This method also applies to shared bank accounts. It is critical to note that the idea of a notional estate in New South Wales obstructs the simple transfer of ownership of jointly owned assets. As a result, you should seek legal advice on contesting a Will in Australia.
Seeking Legal Advice With JB Solicitors
Contesting a Will in Australia needs proper legal advice. After all, family relationships are at stake during Will contests. Our experienced lawyers at JB Solicitors can take proper approaches in contesting a Will and defending it.
Contact JB Solicitors today for your Will contesting matters.
