Legal Ground on Challenging or Defending a Will

Just because an individual goes to the trouble and expense of making a Will does not mean that the terms of such a document will always be adhered to. In some cases the terms of the Will may be successfully challenged.The law relating to the challenging of a Will altered significantly in 1997. Prior to the amendments to the Wills Act 1997 and the Administration and Probate Act 1958 (APA) the only people that could challenge a Will were:

• widows/widowers of the deceased; and
• children of the deceased.

After the passage of the above Acts any person who could prove a financial dependence on the deceased could, in theory, challenge the Will of the deceased. This paved the way for different classes of people to challenge the terms of a Will. Since 1997 the classes of people who have made a successful challenge have included:

• Defacto, second & former spouses;
• Step & foster children;
• Grandchildren;
• Brothers & Sisters;
• Nieces & nephews;
• Carers;

Recently the law has again changed to prevent wide classes of people challenging Wills. In effect this means a return to the law as it stood prior to 1997.The Court must consider three aspects when dealing with a challenge:

• Did the deceased have a responsibility to provide for the Applicant?
• If 'yes' was the provision (if any) made for the Applicant through the Will adequate for that persons proper maintenance and support? and
• If not, what proper level of maintenance and support should have been given?

Parliament also amended the APA to provide guidance as to what matters a Judge may consider when dealing with a challenge. These criteria include:

• Any obligations or responsibilities owed by the deceased to the Applicant;
• The size of the Estate;
• The financial circumstances of the beneficiaries and the Applicant;
• The nature of the relationship between the Applicant and the deceased;
• The age of the Applicant;
• Whether the Applicant contributed to the build up of the Estate assets;
• Any other matter the Court considers relevant.

A potential Applicant has 6 months from the date a Grant of Representation has been received in which to file a challenge. In some cases, through rare, a Court may extend this period. All challenges to a Will are heard in either the County or Supreme Courts making challenging a Will a very costly affair. Most matters settle outside of court given the costs in time, money and the public nature of such a trial.Finally, it must be noted that only assets which form part of an Estate are subject to this law. Assets such as:

• superannuation (unless directed towards the Estate either by a trustee or through a binding death nomination)
• jointly owned property and
• company & trust assets, fall outside the Estate and therefore cannot be the subject of a claim.

If you are challenging or definding a will, please call us on (03) 5941 1622 or email admin@duffysimon.com.au.