Challenging or defending a Will

Just because an individual goes to the trouble and expense of making a Will does not mean that the terms of such a document will always be adhered to. In some cases the Will may be successfully challenged.

The law relating to the challenging of a Will altered significantly in 1997. Prior to the amendments to the Wills Act 1997 and the Administration and Probate Act 1958 (APA) the only people that could challenge a Will were:

  • widows/widowers of the deceased; and
  • children of the deceased.

After the passage of the above Acts any person who could prove a financial dependence on the deceased could, in theory, challenge the Will of the deceased. This paved the way for different classes of people to challenge the terms of a Will. Since 1997 the classes of people who have made a successful challenge have included:

  • Defacto, second & former spouses;
  • Step & foster children;
  • Grandchildren;
  • Brothers & Sisters;
  • Nieces & nephews;
  • Carers; and
  • Neighbours.

The Court must consider three aspects when dealing with a challenge:

  1. (i) Did the deceased have a responsibility to provide for the Applicant?
  2. (ii) If 'yes' was the provision made for the Applicant through the Will adequate for that persons proper maintenance and support? and
  3. (iii) If not, what proper level of maintenance and support should be given?

Parliament also amended the APA to provide guidance as to what matters a Judge may consider when dealing with a challenge. These criteria include:

  • Any obligations or responsibilities owed by the deceased to the Applicant;
  • The size of the Estate;
  • The financial circumstances of the beneficiaries and the Applicant;
  • The nature of the relationship between the Applicant and the deceased;
  • The age of the Applicant;
  • Whether the Applicant contributed to the build up of the Estate assets;
  • Any other matter the Court considers relevant.

A potential Applicant has 6 months from the date a Grant of Representation has been received in which to file a challenge. In some cases, through rare, a Court may extend this period. All challenges to a Will are heard in either the County (a recent occurrence) or Supreme Courts making challenging a Will a very costly affair. Most matters settle outside of court given the costs in time, money and the public nature of such a trial.

Finally, it must be noted that only assets which form part of an Estate are subject to this law. Assets such as superannuation (unless directed towards the Estate either by a trustee or through a binding death nomination), jointly owned and company & trust assets fall outside the Estate and therefore cannot be the subject of a claim.

Please contact Don Duffy or Andrew Penton if you wish to discuss any aspect of this article or you wish to discuss any general Estate Planning queries.