Challenging a Will

Under what circumstances can a Will be Challenged?

A will is a legal document containing instructions on how a person wants their property to be distributed after their death. New South Wales, the principle pieces of legislation governing wills and estates are the Wills, Probate and Administration Act 1898 and the Family Provision Act 1982.

When a person dies with a valid will, an executor distributes their assets according to the wishes of the deceased. However, in certain circumstances, “eligible” parties can challenge a valid will on a number of grounds.

In NSW, an “eligible person” is defined in the Family Provisions Act 1982 and includes: a spouse, a former spouse, a child, a de facto, a dependent grandchild of the deceased and even members of the deceased household.  In the case of a defacto relationship, the surviving party may have to prove to the court they were in a genuine de facto relationship (including same sex couples) before they can make claim to the estate.  The general definition of a de facto relationship is one in which an unmarried couple has lived together for at least two years in a genuine domestic relationship. To determine whether a relationship is actually de facto, certain circumstances must be taken into account. These may include the length of the relationship, whether the couple has children, the degree of financial dependence or interdependence within the relationship and even the performance of household tasks.

A will can be challenged for several reasons. For example if the will is an old version and no longer valid; the will was interfered with after it had been signed; the will was not made with a free mind because the will-maker was somehow manipulated when making the will, or did not have the mental capacity to make a will; or if you were not fairly provided for in the will and believe you are entitled to more.

There is a time limit on challenging a will – in most states it is about 18 months after the death of the deceased, and the challenge is made in the Supreme Court.

Can I reduce the chances of my Will being challenged?

Ensuring you make adequate provision in your will for anyone who depends on is a good start. Intentionally leaving an a child, defacto or spouse out of your will, or bequeathing a large proportion of your assets to only one family member may leave the will open to challenge.

Seeking some sort of legal advice when drafting a will is also a good way to ensure your will stands up to scrutiny. Preparing a “homemade” will is not extremely difficult and there is an abundance of information that will instruct you on how to do so. However, it is important to realise there are several formal requirements that must be adhered to when creating a will, otherwise it may not be valid. For example, the will must be in writing (hand-written or typed) and it must be signed (or the signature acknowledged) by the will-maker in the presence of at least two witnesses.

These days, there are also many “do-it-yourself” will kits available for sale. For some people, the generic option is sufficient, however the more complicated the family arrangement; the more important it is to seek legal advice when writing a will. The simplistic nature of the DIY option may not cover everything you would want to include in your will

Other issues: no valid Will?

If you die intestate (without a valid will), an executor will be appointed to administer the estate according to a legal “formula”. In NSW this is stipulated in the Wills, Probate and Administration Act 1898. However, in each State, the rules of intestacy are similar, and consist of a clear hierarchy that starts with the immediate family.  At the top of the hierarchy are the surviving spouse and/or children, followed by the nearest living relatives. If there are no relatives, then the estate goes to the government.

The most obvious problem with the “formula” is that you have no say over who administers your estate, or the beneficiaries to your estate. It leaves out friends you care about and charities that you want to contribute to. It may even be completely contrary to what you want. For example, difficulties will arise in a situation where a couple is separated and the will has not been changed. They may not want their spouse to receive any benefits under their will, however if they die without a valid will, or the valid will is not up-to-date, then the spouse may be the first benefactor of the estate. There are also examples of parents not wanting their drug-addicted children to receive any of their estate, but without a valid will, the child is one of the first on the list when the estate is distributed.

Furthermore, as each State in Australia has slightly different rules about how the deceased’s estate should be administered, there may be issues if assets are spread across several States.

If you would like more information on Wills and Probate, or have any questions about anything discussed in this article, do not hesitate to contact us anytime, on (02) 8280 6900

This information has been prepared by BPC and is general advice only.  This article does not take into account your personal situation.  Before acting you should obtain legal advice in relation to your particular circumstances. The information contained herein is current at the date of publication, the law frequently changes and as a result the information can be utdated and no longer correct. This article is for the information of clients of Beilby Poulden Costello and is not intended as an advertisement or promotion.

By Barry Beilby

Publish Date: October 1, 2007