Contesting A Will

The most common reason to contest a will is through what is called a testator’s family maintenance claim. This is when a member of the family of the deceased who has not been mentioned in the will claims that the deceased has provided maintenance to them in life and therefore they should be recognized in the will.

Another way to contest a will is to challenge the validity of the will – was the deceased mentally able to make a will and was the will witnessed correctly?

Who Can Make a Claim?

Only an eligible person, as defined by the Administration and Probate Act (section 91) can bring a claim. There are two tiers of ‘eligible persons’.

Tier One – Spouses and children

The following people can make a claim:

• The spouse or domestic partner;
• A child, stepchild, or person who believed they were a child; and
• A former spouse or domestic partner who would have been able to commence proceedings under the Family Law Act 1975.

Tier Two – Other eligible persons

The following people can also make a claim if they can show they were wholly or partly dependent on the deceased for their proper maintenance and support:

• A grandchild;
• A registered caring partner;
• A spouse or domestic partner of a child of the deceased; and
• A member of the deceased’s household.

What is the Test?

The test as outlined by the courts is ‘did the testator (the deceased) have a moral duty to provide for the applicant, and having regard to prevailing community attitudes, has the testator adequately discharged their duty?’

How Will the Courts Apply the Test?

When deciding whether an applicant has a claim, the court puts itself in the shoes of the deceased and considers what he or she ought to have done in all of the circumstances of the case, treating the decease for this purpose as ‘wise and just’, rather than as a foolish parent or spouse.

What Factors Will the Court Consider to Determine a Claim Against the Estate?

The success of any claim will be influenced by such issues as:

• The relationship between the claimant and the willmaker
• The relationship between the willmaker and the named beneficiaries under the will
• The financial needs of the claimant – this usually involves consideration of a wide range of factors, including the age and health (mental and physical of the claimant)
• The financial needs of the other beneficiaries
• The value of the estate

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