Attwood Marshall Lawyers Estate Litigation Special Counsel, April Kennedy, clears up one of the most common points of confusion in succession law – the difference between “contesting a Will” and “challenging a Will.” While the terms are often used interchangeably, they describe two very different types of legal claims.
What does it mean to “contest” a Will?
Contesting a Will refers to a claim that is made on the basis the deceased did not make adequate provision a person in their Will. When someone contests a Will, they are asking the court to alter the terms of the Will to make further provision for them.
To contest a Will, a person must be “eligible” under the relevant State legislation. In most cases, eligible persons include spouses, children (including stepchildren and adopted children), and those who were financially dependent on the deceased.
Eligibility varies between the States and Territories, so it is important to seek legal advice about your specific circumstances.
Being an eligible person is the first step. An eligible person must also be able to demonstrate they have financial need and that the Will failed to make adequate provision for their proper maintenance, support, education and advancement in life. This is the cornerstone of a family provision claim.
Contesting a will is not about fairness. For example, a person who is financially comfortable but considers the estate distribution to be unfair will often have difficulty succeeding in a claim.
The most common situations where Wills are “contested”
There are quite a few scenarios that can lead people to contest a Will. Below are some examples:
- Estrangement – when there has been a significant breakdown in a relationship between a parent and child resulting in a period of estrangement. It is common for the parent to reduce the amount left to that child or to remove them completely.
- Financial contributions to the estate – where a beneficiary contributed to building a family business or property, such as in multi-generational farming families, but the Will does not reflect that contribution.
- Blended families – where the deceased left everything to their spouse, leaving children from a previous relationship with little or no provision. Or vice versa, where the deceased leaves their estate to their children from a previous relationship, and nothing to spouse.
- Outdated Wills – where a Will has not been updated to reflect a significant change in circumstances, such as a new relationship, child or reconciliation after a falling out.
What role does the executor play if a Will is contested?
The executor plays a crucial role when someone contests a Will. The executor ultimately steps into the shoes of the deceased and must represent the interests of the estate.
This means carefully assessing the merit of the claim. This is important. Not all family provision claims have merit.
On the other hand, 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, finding it difficult to remain neutral.
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.
What does it mean to “challenge” a Will?
Challenging a Will is a fundamentally different type of claim. Rather than seeking more provision from the estate, the person challenging the Will asserts the document itself is invalid.
Common grounds for challenging a Will include:
- Lack of testamentary capacity – Where the deceased did not have the requisite legal capacity to understand the effect of their Will. Conditions such as dementia, Alzheimer’s or Motor Neuron Disease are frequently cited in these disputes.
- Lack of knowledge or approval of the Will – the deceased did not know and approve of the Will. This often arises in “do-it-yourself” or homemade Wills or where the person was deaf, unable to speak, blind, or illiterate, or if they were relying on someone else to prepare the Will.
- Undue influence or suspicious circumstances – the deceased was coerced or unduly pressured or influenced to make a Will that they did not want to make and did not truly reflect their intentions. A common example is where one child lived with a parent and inherits the estate to the exclusion of siblings.
As you can imagine, these are sensitive and complex matters. To succeed in these claims, a person challenging the validity of the Will needs substantial evidence including solicitor’s notes, medical records, witness statements, bank statements and other documentation setting out the circumstances around the making of the Will. Evidence is crucial in these types of claims.
What role does the executor play if a Will is challenged?
If the Will was prepared by a solicitor, the executor can refer to that solicitor’s file notes, which should document the steps taken to confirm the deceased’s capacity and their instructions at the time the Will was signed. There is a legal assumption that a Will drafted by a solicitor is ‘valid.’ The onus is on the person asserting otherwise to make their case.
The executor will also need to consider the cause of death, the deceased’s medical history, obtain witness statements from friends, family, and treating professionals.
How can you protect your estate against a future contest or challenge?
The most effective step is to have your Will prepared by an experienced estate planning lawyer. Your lawyer will take detailed file notes, conduct their own assessment of capacity, and in some circumstances obtain a medical report to be used as evidence that becomes necessary.
If your estate structure is complex – for example, if you have a blended family or assets held across multiple entities – your lawyer can advise on strategies to minimise the prospect of a successful claim.
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. Strict time limits apply in every state, so it is important to act quickly.
Our estate litigation team is well-versed at representing clients in matters throughout every jurisdiction in Australia.
To discuss your unique situation, contact our Estate Litigation Department Manager, Georgia Trapp, on direct line 07 5506 8278, email gtrapp@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, Southport, Coolangatta, Kingscliff, Brisbane, Sydney, and Melbourne. Book an appointment online instantly.
