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Contesting a Will

  

When we talk about contesting a will, it can have two meanings. The first is that it is not a valid will, usually either because the required formalities have not been met, or because the maker of the will (“the testator”) did not have the proper capacity to make the will.

The second basis for a challenge is under the Family Provision Act, an Act of Parliament which allows certain persons who believe they received an inadequate – or no – benefit when they warranted more.

If the formalities have not been required with, the Supreme Court does nowadays have the power to still recognize the document as a valid will. If there is evidence that the testator did see the document as representing his or her wishes, a challenge based on non-compliance with the required formalities is likely to fail.

In a different category is the situation where it is the ability of the testator to make a will that is in question. Usually this is based on a lack of mental capacity, that the testator did not fully understand what they were doing. The harder questions arise if the testator is claimed to have been affected by drugs or alcohol, or to have been subjected to pressure, what the law calls “Undue Influence.”

The law is pretty tough: signing a will is strong evidence that the maker accepts it as a valid document. To set a will aside on the grounds of undue influence, one must virtually show that the maker was so pressured or overcome that the will does not represent their true wishes and intention. 

More straightforward is a challenge on the basis of fraud. An example might be where someone says “You leave me everything and I will leave you everything”, but then does not. In such circumstances, the will might well be set aside.

Claims under the Family Provision Act can be made by someone who is an “Eligible Person”, as defined in the Act.

These are;-

•Husband or wife

•A de facto or same sex partner

•A child

•A former husband or wife

•Grand-child

•Someone who has ever been dependant on the deceased, wholly or partly

•Someone who has lived in the same household as the deceased.

  

To succeed a claimant must show that an adjustment is necessary to appropriately provide for their maintenance, welfare and advancement. The Court looks at moral claims – was it unfair or inappropriate to treat the claimant the way the will provided, given the relationship which existed.

The mere fact that, for example, one adult child was left less than others could be explained by their financial circumstances compared to their siblings, or by a poor relationship. If a will-maker intends to treat members of a group such as children differently, it is a good idea either to make mention of the reason in the will, or to sign a statement of reasons and leave it with the will.

Former partners, married or not, are eligible persons, but it is virtually unheard of for them to be able to claim successfully if there has been a property settlement under Family Law or de Facto law. The courts see that as being a second bite of the cherry.

If you want protection against claims on your estate, or you want to challenge a will, we at the Estate Ligation Experts can help you, because we know that such matters can be delicate, we will look for the right solutions for you.

  

 

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Barwick Boitano Lawyers

29 Fennell Street,  North Parramatta NSW 2151

(02) 9630-0444

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