In Part 3 of our EP FAQ series, we explore some common questions we get asked about Wills and estate challenges. If this is something you have been wondering about, read on!
When can a Will be challenged?
- Making a claim that you have not been adequately provided for under the Will (also referred to as making a ‘family provision claim’); or
- Arguing that the Will is invalid – that some of the circumstances surrounding the making of the Will were not quite right.
When is a Will invalid?
A Will may be considered invalid for a variety of reasons such as:
- The Will presented to the court was not the testator’s last Will;
- The Will was revoked;
- The testator lacked the mental capacity to make a Will;
- The testator did not understand what they were signing; or
- There was undue influence or fraud involved in the making of the Will.
The ‘testator’ is the person who made the Will.
What is the process for challenging the validity of a Will?
Wills are governed by state or territory-based legislation, so the process for challenging the validity of a Will will vary depending on the jurisdiction. The person making the challenge will need to provide evidence to the Court to prove that the Will is invalid.
Ideally, any concerns regarding the validity of the Will should be raised before a Grant of Probate is made. If probate has been granted, then a person challenging a Will must also apply to have the Grant of Probate revoked in order to challenge the Will’s validity.
If you think you may have grounds to challenge the validity a Will, then you should immediately lodge a caveat over the Estate, which will prevent a Grant of Probate being issued. If the caveat is challenged, you will need to be prepared to participate in Court proceedings. Probate caveats can expire and there can be orders made against the person who lodged the caveat if there were no grounds to lodge it, so it is important that you seek legal advice if you have any concerns about the validity of a Will.
Who can challenge a Will?
Generally, those who are considered “eligible persons” under the law can challenge a Will. This depends on the legislation in each state or territory, but can include:
- Spouses and former spouses of the deceased;
- The domestic partner (or former domestic partner) of the deceased;
- A child if the deceased;
- Step-children of the deceased (in limited circumstances);
- Grandchildren of the deceased (in limited circumstances); and
- Parents and siblings of the deceased (in limited circumstances).
How can I make a claim if I haven’t been adequately provided for under a Will?
If you believe you haven’t been adequately provided for in a Will, you can potentially make a claim under family provision laws. A person who is entitled to make a claim can argue that they have been left without adequate provision for his or her proper maintenance, education and advancement in life.
What is relevant for a family provision claim?
Once a claim is made by an eligible person, the Court will assess the extent to which the person’s maintenance, education and advancement in life have been provided for under the Will. If the Court considers that the provision is inadequate, then it will consider what the person should have received out of the Estate.
The Court will look at a number of factors in this consideration, including:
- How big is the Estate?
- What are the applicant’s circumstances? i.e their age, health and financial position
- What was the relationship between the deceased and the applicant?
How can I avoid challenges to my Will?
To minimise the chances of your Will being successfully challenged, it’s crucial to ensure that your Will is clear, valid, and reflective of your wishes. If you are considering leaving a family member out of the Will for a particular reason, then there are a number of steps you can take to reduce the likelihood that the person will make a claim:
- Depending on the jurisdiction, you may be able to restructure your assets so that there are very few assets passing through your Will. You should seek appropriate tax, financial and legal advice before making any significant changes.
- If you are on speaking terms with that person: then explain the reason why you have not provided for them in the Will. It may be that you have already given them ‘their share’ of your Estate during your lifetime – for example, by giving them the family business;
- If you are not on speaking terms with that person: then leave a detailed statement explaining why you have left only a small amount, or nothing, to that person. This will not prevent them from making a claim, but will assist your Executors in explaining your decision to the Court. Even if you are on speaking terms with the person, this can be helpful;
- If you have the resources: then leave them an amount which you consider will provide for them appropriately, even though it may not be the percentage of your total Estate that they would expect to receive. You may wish to also leave a statement explaining why you made the provision to that person.
If you are excluding someone from your Will, or you think someone will be upset by the distribution of your assets, you should seek legal advice about how best to draft your Will and structure your assets to limit the risk of a successful challenge.
More questions about your estate planning?
Check out the rest of our EP FAQ series:
- EP FAQ Part 1: What is estate planning and what do you need to consider?
- EP FAQ Part 2: Wills
- EP FAQ Part 4: Financial Decision Making and Medical & Lifestyle Decision Making
- EP FAQ Part 5: Estate Administration
- EP FAQ Part 6: Super
The information contained in this post is current at the date of editing – 25 September 2023.