Attwood Marshall Lawyers Estate Litigation Senior Associate Martin Mallon joins Robyn Hyland for “Law Talks” on Radio 4CRB to debunk ten mistruths about estate litigation and contesting Wills.
1. Is it true that when writing a Will, if someone leaves a written or video statement explaining why they have left someone out of their Will, this is sufficient evidence to stop that individual contesting the Will?
Families can be complicated, and there are many reasons why a Will-maker may want to leave someone out of their Will who otherwise would be entitled to seek further provision from the estate upon the Will-maker’s death, otherwise known as a Family Provision Application.
A Will-maker has the option to leave a signed letter, a video recording, or an audio file that explains the rationale behind the gifts in their Will, including why they excluded a person from benefiting from their estate. However, in the event an aggrieved person seeks further provision from the estate, the weight given by a court to evidence of the Will-maker depends on several factors.
If someone contests a Will, the Will-maker’s video, audio, or written statement will be considered by the court when determining the merits of the claim and ultimate outcome.
This type of evidence can be powerful and can assist an executor in resisting a family provision claim, however, it will not prevent an eligible person from attempting to seek further provision from the estate.
Like any estate dispute, the outcome of a contested family provision application will ultimately depend on the facts, evidence, and merits of the case.
Read more: Leaving written reasons in your Will to stop someone benefiting from your estate
2. Is it true that if you put a “no contest” clause in your Will, it cannot be contested?
A “no contest” clause is often found in do-it-yourself (DIY) Will Kits and homemade Wills where a Will-maker believes the clause will avoid a family provision claim.
A no-contest clause typically states that anyone who contests the Will forfeits their right to their bequest.
Although a no-contest clause may be enforceable in other countries, in Australia, it is non-binding. A no-contest clause won’t invalidate a Will, but given that it isn’t enforceable, it doesn’t achieve anything putting it in.
The right for someone to claim on an estate is set out in the relevant Succession legislation in each state and territory. Therefore, if someone is eligible to file a family provision application, and they believe they have not been provided with adequate provision for their proper maintenance and support, a no-contest clause will not restrict them from doing so or potentially being successful in their claim, depending on the facts of the matter. Quite simply, you cannot limit someone’s statutory right to bring a claim by including a no-contest clause in a Will.
3. Is it true that you cannot contest a Will after probate?
An eligible person can contest a Will and file a family provision application after probate has been granted.
The biggest issue with doing so relates to the limitation period to file such a claim, which is different in each state and territory.
For example, in Queensland, a person must give notice to the executor or administrator by providing written notice of their intention to seek further provision from the estate within 6 months from the date of death of the deceased. If the dispute remains unresolved, a person must file formal proceedings within 9 months from the date of death of the deceased.
In New South Wales, a person who is eligible to contest a Will has 12-months from the date of death to file a family provision application.
In other jurisdictions such as Victoria and South Australia, the timeframe to file a family provision application against an estate is within 6 months after a grant has been issued by the Court.
If a person seeks to challenge the validity of a Will, it is more challenging although not impossible, to succeed in such a claim if probate has been granted.
If you miss these time limitations, you may lose your potential right of action forever.
4. Is it true if someone promises another person a property or asset during their lifetime, but this promise isn’t mentioned in their Will, the aggrieved individual can contest the Will to claim what was promised?
These cases are surprisingly more common than one may think and are called an estoppel claim.
One of the more common scenarios we see an estoppel claim occur is where a child dedicates years of time and labour on a family property or farm (without payment or substantial reward) based on the promises or representations made by their parents that they will inherit the property or farm upon their parent’ death.
The issue arises when a person later signs a Will that doesn’t include the said promise. When the individual eventually passes away, and there’s no written agreement in place, the other party may file an estoppel claim against the estate to enforce the promise made by the deceased person.
To establish equitable estoppel, the person seeking to enforce the promise needs to prove the following:
- The deceased made the promise to them during their lifetime;
- They relied on that promise and suffered loss or detriment because of that reliance and
- The loss they suffered was reasonable given the circumstances, and it would be morally wrong (unconscionable) if the deceased’s estate were not held accountable for the promise.
Read more: Broken promises – making a claim when a promise hasn’t materialised in someone’s Will
5. Is it true that the estate covers the cost when you contest a Will?
No, that is not the case.
When contesting a Will, the allocation of costs is at the absolute discretion of a court and will usually depend on whether you are the applicant seeking further provision from the estate or the executor defending the claim.
As an applicant, the starting point is that costs are not borne by the estate. In the event an applicant is successful in contesting a Will, usually a court will order that part or a significant portion of their costs be borne by the estate.
On the other hand, if you are defending a claim on behalf of the estate, usually any reasonable costs incurred by the executor will be borne by the estate unless there are unique circumstances.
It is essential to note that if someone brings a claim against an estate and that claim is unsuccessful, they may be required to pay not only their legal expenses but also the legal costs incurred by the other parties involved in the case.
This rule is intended to discourage frivolous challenges and emphasizes the importance of seeking proper legal advice before pursuing a family provision claim. This way, individuals can make informed decisions and avoid unnecessary costs.
6. Is it true that if a child’s conduct towards their parent has been deplorable, which is why the parent did not include them in their Will, then the child cannot contest the Will?
This is referred to as disentitling conduct and could result in an applicant’s claim being unsuccessful.
In some jurisdictions the court may refuse to make an order in favour of any person making a family provision claim because their character or conduct towards the deceased was so poor or grave that, in the court’s opinion, they are disentitled to any provision from the estate.
Usually, the executor would argue this defence on behalf of the estate to demonstrate that the deceased had a valid reason for omitting that person from their Will.
The types of behaviour that could constitute disentitling conduct may include:
- desertion or a malicious lack of contact with the deceased;
- mistreatment;
- physical, emotional, or financial abuse; or
- criminal conduct such as acts of violence or committing other offences and threats to the deceased or their property.
It is a high bar for an applicant’s claim to be refused based on disentitling conduct although the court may still take it into account to reduce any award for provision.
Read more: Disentitling conduct – how bad behaviour can affect someone contesting a Will
7. Is it true that if someone makes a family provision claim, the court will divide an estate equally among the surviving children of the deceased to ensure fairness?
“Fairness” and estate litigation don’t always go hand in hand. Disputes in this context aren’t resolved solely based on what might seem fair to outsiders.
Here’s the truth:
It’s a common misconception that an estate should be evenly distributed among the surviving children of a deceased person. In reality, when someone files a family provision application, they seek adequate provision for their proper maintenance and support. This often doesn’t translate into an equal split of the estate.
While there have been instances where a court ordered an equal division of an estate – these decisions are always contingent on the unique facts and circumstances of each case. No blanket rule states that all estates must be divided equally among the children. Instead, the court evaluates various factors to determine what is adequate and appropriate for the situation.
8. Is it true that only biological family members can contest a Will?
There can be a lot of confusion around who is entitled to contest a Will, particularly in blended family scenarios or families with adopted children.
In addition to biological children being defined as an eligible person in the context of a family provision application, stepchildren and adopted children also qualify as a child of the deceased under this criterion. This means biological children, stepchildren and adopted children have the same legal rights to contest a Will.
In Queensland, the eligibility of a stepchild from their partner’s previous spouse who has died remains untested.
Example scenario: Bob and Fiona are married. Bob has a child from a previous marriage. Fiona passes away. Bob’s child (Fiona’s stepchild) can in this instance claim on Fiona’s estate as a stepchild when she passes away.
If Fiona enters a new de facto relationship with Gary following the passing of Bob, and Fiona then passes away, it remains untested whether Fiona’s stepchild to Bob would be considered eligible to make a claim against Gary’s estate as a stepchild if Gary passes away.
In some jurisdictions such as New South Wales, someone who was dependant on the deceased during their lifetime and resided in the same home is also eligible to make a claim. This may not necessarily be a family member or partner!
9. Is it true that you need a lot of money to contest a Will?
No, that’s not accurate. Contesting a Will doesn’t necessarily require a significant upfront financial commitment. Some law firms offer alternative fee arrangements that make it accessible to a broader range of individuals.
These alternatives may include deferred fees or a “no win, no fee” arrangement, where you only pay legal fees if your case is successful.
It is crucial to note, though, risks and potential liabilities are still involved in contesting a Will, so it’s not entirely without financial considerations.
To navigate this complex area of law and understand your rights, it’s always advised to consult with a lawyer who specialises in estate litigation. They can help you explore the available fee arrangements, assess the likelihood of success in your case, and provide the guidance you need to make informed decisions regarding contesting or challenging a Will.
10. Is it true that leaving someone $1 in your Will or a small memento, will prevent them from contesting it?
It is a common misconception that leaving a symbolic amount, like $1 or a small keepsake, in a Will can deter potential challenges. Unfortunately, this strategy doesn’t work.
If an individual is eligible to make a family provision claim under legislation in the state or territory and can demonstrate that they haven’t received adequate provision for their proper maintenance and support, their claim may succeed.
If a Will-maker intends to limit the inheritance of a specific family member or dependant, alternative strategies can be explored with a lawyer who specialises in estate planning. Leaving a token amount won’t achieve the desired outcome in most cases.
Attwood Marshall Lawyers – experts in estate litigation
We are proud to have a highly experienced estate litigation team with senior lawyers who practice exclusively in this complex area of law. Our team are readily available to help people understand their rights in estate disputes.
Succession Law and contesting Wills are complex issues, and when someone makes a family provision claim, emotions are generally running high. It is important to get the right advice from the start and be to have an experienced lawyer guide you through the dispute resolution process. Trusting an experienced lawyer will often mean they can help carry the burden and reduce family conflict as much as possible.
For expert advice, please contact our Estate Litigation Department Manager Amanda Heather, on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or free call 1800 621 071 any time.
Our team are available for appointments at any of our conveniently located offices at Robina Town Centre, Coolangatta, Southport, Kingscliff, Brisbane, Sydney, and Melbourne.
