The courts only change the provisions of a valid will for legitimate reasons. If you are living overseas and are looking to contest a will in Australia, you need to know the grounds for making such a claim and whether you qualify.
When Can You Challenge a Will?
An estate planning lawyer will advise you that the grounds for contesting a will are any of the following:
- When there is proof of tampering
- When the will has been poorly executed
- When the person drafting the will is under improper influence or is duped by another party into drafting the will
- In situations where there is another recent will drafted by the deceased
- When the person drafting the will is not mentally fit to understand what they were doing
- When the will does not properly accommodate family members
Wills with Unclear Meaning
If during estate planning, the will is drafted in a clear language, the courts will hardly interfere with the deceased’s wishes. However, in case the elements of the will were ambiguous, the courts may attempt to clarify the will maker’s wishes if an interested party or the executor of the deceased’s orders makes such an application. The court’s main objective is to implement the will maker’s wishes and to intervene when the will fails to achieve its intended objectives. When making a will in Australia, people are warned against using ambiguous statements or languages to prevent future conflicts.
Who Can Contest a Will?
During estate planning, the applicant has the right to apportion assets and property any way they deem fit. However, when a family member or someone with close ties to the will maker is not included in the will as a beneficiary, they can dispute a will. The people who can contest the will on grounds of being left out as beneficiaries include:
- A de-facto partner or anyone who has been in a domestic relationship with the will maker
- The deceased’s child or grandchild
- Anyone with a close relationship with the deceased (e.g. a dependent) or a stepchild who was being catered for by the deceased.
- The parent(s) of the deceased provided the will maker cared for them before his/her death or the deceased has no partner or child.
When deciding whether someone qualifies to dispute a will, the court may consider the applicant’s age, mental/physical disabilities, and financial resources.
The deceased’s partner is their domestic partner for two consecutive years, spouse, or a person who shares a child with the deceased.
A former partner is eligible to contest a will if they were the will maker’s domestic partner for two consecutive years, or if they shared a child with the deceased.
A domestic relationship with respect to wills is a relationship between two individuals with one adult offering personal or financial commitment to provide domestic support to the other. Domestic relationships do not entail marriage, and therefore, both parties do not have to live together. However, where an adult receives some sort of reward or payment, this does not qualify as a domestic relationship.
How to Contest a Will
If you are living overseas and are wondering how to contest a will in Australia, the first step is making a family provision claim in case you were left without enough provision from the will maker’s estate. A family provision claim is made in Australian Capital Territory (ACT) when:
- The real estate owned by the will maker can be found in the ACT
- The deceased was living permanently in the ACT during his/her demise and owned property around the area
The Statute of Limitations of Contesting a Will
According to the ACT, contesting a will time limits should be followed. A person should make a claim to contest a will 6 months before the date administration or probate is granted. In some special cases, claimants are allowed to apply after the expiry of 6 months. To make a claim six months after the administration or probate has been granted, one needs to prove “sufficient cause.” Applicants should show the court sufficient explanation or justification to be allowed to contest after the expiry of the limitation period. Your estate planning lawyer will advise you on the exceptions of statutory time limits of contesting a will.
What Does the Court Consider when Listening to a Claim?
According to the ACT, the court looks into several matters when a person files a family provision claim. The main considerations include:
- The duration and nature of the relationship between the applicant and the deceased
- The deceased’s obligations toward the beneficiary or applicant
- The extent and nature of the deceased’s estate
- The applicant’s needs (future and present) and financial situation (including their earning potential)
- The financial situation of anyone living with the applicant
- Any physical or mental disability of the applicant during the hearing
- The age of the applicant during the hearing
- Whether the applicant contributed to the deceased’s welfare, conservation, or improvement of their estate without receiving sufficient consideration
- Evidence showing the deceased’s intentions
- Whether there is anyone else who is responsible for supporting the applicant
- The applicant’s conduct and character before and after the will maker’s death
- Any Torres Strait Islander or Aboriginal relevant customary laws or any other matter that the court may deem to be relevant
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