Attwood Marshall Lawyers Estate Litigation Senior Associate, April Kennedy, recently joined Robyn Hyland on Radio 4CRB to clear up the confusion about what the difference is between “contesting a Will” and “challenging a Will”. ‘Contesting’ usually relates to bringing a claim against the estate for provision, whereas ‘challenging’ is disputing the validity of the Will itself. They are subtle differences in the words used, but very different types of causes of action.
What does it mean to “contest” a Will?
Contesting a Will is when someone makes a claim on the estate on the basis that the deceased did not make adequate provision for them in their Will. When someone contests a Will, they are seeking the assistance of a court to alter the terms of the Will as to how the assets should be distributed to the beneficiaries in the estate.
You must be an eligible person to be able to contest a Will. It is not open to friends, colleagues, or distant relatives to contest someone’s Will after they die. Importantly, you must be able to demonstrate that you have financial need, and that you require some form of provision from the estate because your circumstances are dire. For instance, a wealthy person cannot generally “contest” a Will because they think the Will is unfair or because they are seeking some form of compensation (usually it is on the basis they did not get an equal share among their siblings).
Who can “contest” a Will?
The States and Territories differ slightly in determining who is considered an eligible person to contest a Will. However, in most cases an ‘eligible person’ is defined as:
- A spouse
- A child (which includes a natural, stepchild or adopted child)
- A category of persons who were dependent on the deceased at the time of their death.
- A de facto partner or spouse of the deceased at the time of their death
- child of the deceased
- A person with whom the deceased was living in a close personal relationship
- A grandchild who was dependent on the deceased at any time during their life
- A person who was a member of the deceased’s household and was dependent on the deceased at any time during their life.
- A former or current spouse or domestic partner
- A carer who was in a registered caring relationship with the deceased
- A child (under the age of 18 years old), or who was studying full-time and aged between 18 and 25 years
- A child with a disability
- A stepchild or adopted child of the deceased
- An adult child who has difficulty supporting themselves financially
- An assumed child.
After being defined as an eligible person to contest a Will, the next question is whether the terms of the will provide adequately for the person contesting the will (i.e. were they left little or no provision?). Adequate provision is subjective, and it will be determined based on the individual facts and circumstances of the matter.
The most common situations where Wills are “contested”
There are quite a few scenarios that play out and lead people to contest a Will. Some of the more common reasons include:
- Estrangement – when there has been a significant breakdown in a relationship between a parent and child and they have been estranged for an extended period of time. It is common for the parent to reduce the amount they wish to leave to that child in their Will or write them out completely.
- Beneficiaries making financial contributions to the assets within the estate – where a parent has drafted their Will to leave their estate equally to their children, however, one of those children may have financially assisted in building a family business or renovating the family home. This is commonly seen in multi-generational farming families where a child has contributed to operating and building the family farm with the incentive that they will inevitably inherit the farm.
- Blended families. It is not uncommon for people in second, or third, relationships to make their Will and leave their estate to their children from a previous relationship, and nothing to their partner. Or, the opposite, they choose to leave everything to their partner and nothing to their children (usually on the assumption that their partner will inevitably provide for their children in their own will).
- Outdated Wills. Generally, most people know to update their Will every 2-3 years or when a significant event takes place in their life. However, sometimes it can be forgotten or put off. If someone passes away suddenly, the outdated Will may not reflect the deceased’s wishes. This can be an issue in de facto relationships, where one party may have made a Will before the relationship commenced. This may also be the case when a parent has had a falling out with their child and writes them out of the Will, only to reconcile a short time later and forget to update their Will.
What defence does an executor have if someone contests a Will?
The executor plays a crucial role when someone contests a Will. The executor ultimately steps into the shoes of the Will-maker and must represent the interests of the estate. It is the executor’s duty to compromise the claim and to participate in the dispute resolution or court process.
An executor must carefully consider merit of the claim, and not simply capitulate. Not all family provision claims have merit. As soon as a dispute over an estate arises, an executor should seek advice from an estate litigation lawyer to understand the likelihood of the claim being successful and how to approach it.
In defending a family provision claim, the executor should place all the relevant evidence before the court relating to the case by affidavit – including their recollection of the relationship between the claimant and the deceased, and statements from third parties.
On the flipside, an executor should be careful not to fight a claim at all costs. We see this happen quite often when the executor is also a beneficiary or is known to the applicant and is emotionally impacted by the claim. It can be challenging for an executor to remain neutral when these types of disputes arise.
What does it mean to “challenge” a Will?
Challenging a Will is when someone objects to the validity of the document itself. In other words, they are questioning the circumstances around the making of the Will. This often happens when the person who made the Will was suffering from dementia or Alzheimer’s and an argument is raised that the person who made the Will was lacking ‘testamentary capacity’.
Lacking testamentary capacity means that the testator did not have the legal capacity to understand what they were writing, or the extent of their assets or to whom they have a moral obligation to provide for when making their will. It is a legal requirement to have testamentary capacity to be able to make a valid Will.
The most common reasons why Wills are “challenged”
Some of the main reasons we see Wills being challenged are due to:
- Testamentary capacity – the Will-maker suffering from a condition such as Dementia, Alzheimer’s, or Motor Neuron Disease, to name a few.
- Lack of knowledge or approval of the Will – the person making the Will did not know and approve what they were signing. This often comes up in “do-it-yourself” or homemade Wills and where the person was deaf, unable to speak, blind, or illiterate, or if they were relying on someone else to sign the Will on their behalf.
- Undue influence / suspicious circumstances – that the deceased was coerced to make a Will that did not truly reflect their own intentions. This argument is often raised in situations where one child lives with mother or father, who then makes a Will leaving the family home to that child. This is difficult to prove, but sadly, happens more often than it should!
As you can imagine these are sensitive and complex matters. For these types of claims to be successful, anyone challenging a Will’s validity will need substantial evidence such as medical reports, specialist reports, witness statements, evidence of social media posts, photographs to show evidence of relationships in the family unit, bank account statements, telephone log history and bills, just to name a few. Evidence is crucial to determining if a claim has merit.
What defence does an executor have if someone challenges the validity of the Will?
If the Will has been drafted by an estate planning lawyer, the executor will be able to refer to the lawyer’s file notes, as well as medical reports and clinical notes at the time the Will was executed. This is the best place to start when defending a Will challenge.
If a Will is prepared by a lawyer, there is an assumption that the lawyer took the necessary steps to ensure there were no capacity issues, or undue influence.
The executor will also need to look at the circumstances around the making of the Will. These may include:
- Considering if the Will was a homemade Will or “DIY” Will – Challenging a DIY Will can be much more difficult because there can be a lack of evidence to prove the Will-maker did not have capacity, or knowledge of the Will at the time they executed it. It can be extremely costly trying to defend a homemade Will or DIY Will.
- Checking the death certificate for the cause of death – was that person suffering from Dementia or Alzheimer’s when the Will was made? Of course, a diagnosis of this kind is not automatically indicative that the Will is not valid; capacity is fluid. Someone with dementia may have capacity in the morning, however, deteriorate throughout the day and not have testamentary capacity in the evening.
- Speaking to the deceased’s medical professionals;
- Speaking to the deceased’s friends and family.
How can people plan appropriately if they suspect someone might try to contest their Will after they are gone?
The best way to protect your best interests and ensure your Will is upheld after you are gone is to have your Will and estate documents prepared by an experienced estate planning lawyer. Your lawyer can utilise strategies to protect the estate and the beneficiaries the Will-maker wants to benefit.
We’ve seen people who are concerned about their family contesting their Will try to offload or transfer assets prior to their death, in an attempt to reduce the value of their estate left behind and leave nothing for the beneficiaries to fight over.
This may not work as you expect. It is important to understand how the law applies to these types of matters in your specific state. In New South Wales, the law is unique and gives the court discretion to claw back certain assets, known as notional estate. This can include any assets that were transferring within three years prior to someone’s death.
The best option is to sit down and discuss your circumstances with an estate planning lawyer so that they can fully understand what the family make up is, what the asset structure is, and then they can provide advice around strategic ownership of assets, keeping certain assets outside of your estate, such as superannuation and life insurance policies, and other strategies to help you achieve what you are setting out to.
How can people protect their Will and their estate from anyone who may challenge the validity of the Will?
If you are worried that someone is going to challenge the validity of your Will after you are gone, you should have your Will prepared by an experienced estate planning lawyer.
This is especially the case if there are any questions about testamentary capacity.
An estate planning lawyer will ensure they take appropriate file notes and collect evidence should the Will ever need to be defended. As part of the estate planning process, an estate planning lawyer will perform their own test during the interview with their client to be satisfied of capacity.
In certain circumstances, a report from the Will-maker’s treating doctor to confirm their capacity may serve them down the track should the document be challenged in instances where someone has early-stage dementia or similar conditions.
Attwood Marshall Lawyers – Experts in estate litigation
Whether you are seeking to contest a Will or challenge the validity of someone’s Will, it is essential to obtain advice from an estate litigation lawyer who has the skills and experience in this complex area of law.
An experienced lawyer will be able to review your case to determine your prospects of success. Failure to obtain advice from a lawyer who practices in this area may result in a costly and fruitless outcome.
As strict time limitations apply when contesting a Will or challenging a Will, you should act quickly to protect your rights and interests.
Our estate litigation team are well-versed at representing clients in matters throughout every jurisdiction in Australia, including Queensland, New South Wales, and Victoria.
To obtain advice on your unique situation, contact our Estate Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or free call our 24/7 phone line on 1800 621 071.
Our lawyers are available for appointments at any of our conveniently located offices at Robina Town Centre, Coolangatta, Kingscliff, Brisbane, Sydney, and Melbourne.
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Read more:
A sordid tale of undue influence and mental capacity issues when writing a Will
Contesting a Will by bringing a Family Provision Application
Ambiguous Wills and the trouble they cause
