Colleen McCullough died in January, 2015 and was known as one of Australia’s most successful literary writers. The author of the international successful novel The Thorn Birds, published in 1977, had an Estate estimated to be worth millions of dollars at the time of her death.Continue Reading
Contesting a Will
Who Can Contest a Will?
The laws governing Wills and Disputes about Wills differ from State to State.
According to the law in NSW, after a person dies, you may contest the validity of a Will if you are an eligible person. You are considered to be eligible if you fit any of the following descriptions:
- You were the spouse of the deceased at the time of death.
- You were a person who was living in a de-facto relationship with the deceased at the time of death. This includes same sex partners. The definition of a de-facto partner requires couples to have lived together for two years up to the date of the deceased's death.
- You were the deceased’s child. This includes adopted children but not step children.
- You were the deceased’s former spouse and had not remarried prior to the death of the deceased.
- You were a person who was:
- dependent (wholly or partly) on the deceased at a particular time.
- a grandchild of the deceased.
- a member of the household of the deceased.
- a person who lived in a close personal relationship with the deceased when the deceased died. For example, two adults may be classified as living in a close personal relationship if they live together and provide personal care and domestic support, without receiving payment or volunteering for a charity.
If you are a parent, sibling, step-child or former de-facto spouse, you are not considered to be an eligible person unless you are eligible under the category where you lived with the deceased and were dependent on the deceased.
Grounds For Contesting A Will
According to the law in NSW, you have the grounds to contest a Will in the following circumstances:
To make a valid Will, a person needs to have a certain capacity and level of understanding about what they are doing when they are making their Will. This is referred to as Testamentary Capacity.
A lack of Testamentary Capacity will mean that the Will is not a valid Will and a previous Will needs to be relied on or, if there is no previous Will, the deceased Estate needs to be distributed in accordance with the Rules of Intestacy.
Lack of Valid Execution
There are a lot of formal rules surrounding the way a Will is to be signed and witnessed. A failure to strictly follow these rules will mean that the Will has not been signed properly and the Will will not be valid.
To ensure you meet the strict and formal rules for executing your Will, you should consider having your Will drafted by an expert Wills and Estates lawyer and sign the Will at their offices to ensure it is valid.
Lack of Knowledge and Capacity
Will’s are often challenged on the basis that the person making the Will did not understand what they were doing. This has become a common Will challenge and is usually linked to a diagnosis of dementia, or another medical condition that affects the reasoning of the person making the Will.
Fraudulent Wills are Wills that were not made by the deceased but by someone known to the deceased who wants to inherit from the deceased Estate. These types of Will Challenges can occur when there are a number of Wills of the deceased and one of the beneficiaries claims that one of the Wills is fake.
Rectification of a Will
It is not uncommon for the beneficiaries or the Executor of a deceased Estate to apply to the Court for clarification or rectification of a Will.
The Court has the power to change a Will if the Will is not clear or a party can prove that it does not have the effect that the deceased wanted it to have.
Before You Decide to Contest a Will
There are three main circumstances to consider when challenging a will. Before we discuss these, let's first understand some basic concepts about Wills.
Usually, the executor named in the Will must obtain a grant of probate from the Supreme Court which gives legal authority to deal with the deceased’s property. In order to obtain a grant, the executor must lodge the Will and certain other documents with the Court.
Once the Court Registrar is satisfied that the documents are in order and that the Will is formally valid, a grant of probate in common form is issued.
If there are contentious issues surrounding the Will, a grant of probate in solemn form will be issued. Contentious issues often arise where parties seek to challenge the Will using the methods outlined below. We are going to focus here on challenging Wills that receive grants in common form.
Of the three options for challenging a Will, one is available before the grant of probate, and two are available after.
Challenging a Will Before a Grant
If a grant in common form has not yet been made, a caveat (which is a warning entered in the books of the Court Registry) can be lodged with the court. This prevents the Court from issuing a grant of probate without first notifying the person who lodged the caveat. Each type of caveat is appropriate to different circumstances.
- Caveats seeking proof of the Will in solemn form.
- General caveats.
- Caveats forbidding grants in respect of informal documents.
These can only challenge the will on the issue of due execution, no other issue can be raised. They are used where there are concerns about forgery or doubts about whether the will was properly signed and sealed.
Used where doubts arise about the testator’s capacity to make the will, the identity of the intended beneficiary, the testator’s understanding of the content of the will or its effect, whether the deceased acted under duress or undue influence in making the will, or if there are concerns about forgery.
In some circumstances, the Court has the power to treat informal documents as wills even though they may not have been properly signed or witnessed. This type of caveat prevents a court from making such a grant without first hearing from the caveator regarding whether the informal documents should be granted validity.
Challenging a Will After a Grant
Application to the Equity Division of the Supreme Court under the Family Provision Act 1982
The Family Provision Act 1982 specifically applies to people who have not been provided for in the relevant will. If the Court is satisfied that the person applying is an “eligible person”, it may order that provision out of the estate be made for that person’s maintenance, education or advancement in life.
An “eligible person” is defined in the Act as:
- wife, husband or child of the child of the deceased, or former wife or husband;
- grandchild who was wholly or partly dependent on the deceased, or who was a member of a household of which the deceased was a member;
- person living in a domestic relationship with the deceased when they died.
The most recent amendment to these categories was the inclusion of the “person living in a domestic relationship” as an eligible person. This covers partners who do not fit within the formal definition of de facto couple to apply for provision under their partner’s will. However, not all partners can claim. For example, a girlfriend who lived separately from the deceased will not be able to claim, whereas a partner in a same-sex relationship who was living with the deceased (thus fulfilling the statutory definition of “domestic relationship” in the Property (Relationships) Act 1984) will be able to claim.
Despite this broadening, there are a number of requirements to be fulfilled in order to successfully challenge a will. The Family Provision Act 1982, the Property (Relationships) Act 1984, the Wills, Probate and Administration Act 1898 and the Supreme Court Rules 1970 all contain different parts of the legal jigsaw. The Court’s discretion to grant an application in these circumstances is not unrestricted. Therefore, care should be taken with these matters, and anyone considering making such an application should seek expert legal advice.
Application to the Probate Division of the Supreme Court for Revocation
Where a grant of probate in common form has been made, an application can be lodged with the Court to revoke that grant. The grounds for revocation are very limited, but include where the grant:
- has been made to the wrong person (eg if a later will is discovered);
- is irregular (eg one made despite a caveat being in force);
- has become ineffective (eg where the executor has become mentally ill).
Any interested person can apply for a grant to be revoked, including anyone entitled to the estate if there was no will, any beneficiaries named in either the current or a previous will, and any executor named in the will. Revocation is not lightly granted and any person considering such a step should seek expert legal advice.
See our Will Dispute Lawyer & Contesting Wills page for more information on the Wills & Estates services we provide or contact us for advice specific to your situation.
Will Disputes Involving a De Facto Relationship
The Estate of Peter Wolfgang Porada, Late of Pericoe  NSWSC 818
Relationships can be complicated at the best of times, but even more so when one of the parties dies and the other is left to prove their relationship before the Court.
In order to make a claim for further provision from a deceased estate, you must be an eligible person, as defined by Section 57(1) of the Succession Act 2006 (NSW). One category of eligible persons, is a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death.
In the recent case of Wilson v Porada, the Deceased died without a Will, leaving his siblings to inherit his estate under the laws of intestacy. The Plaintiff claimed that she was the de facto widow of the Deceased and filed Court proceedings seeking orders for provision from the Deceased’s estate.
The Plaintiff relied upon evidence that the Deceased carried out odd maintenance jobs around her home, left clothing and toiletries at her home, and kept his motorcycles, which were of a significant value, at her home. However, the Judge did not view such evidence as strong indicators of a continuing de facto relationship, but a choice made by the Deceased to maintain a civil relationship with an ex de-facto partner and still allow the Plaintiff a place in his life.
The Defendants claimed the Plaintiff and the Deceased were “just drinking buddies” after their separation. However, the Judge viewed their relationship as one that continued as “friendly neighbours, who helped each other out” and was characterised by the “closeness and mutual understanding of people who had once been in an intimate relationship and still had a level of personal friendship”; but such a friendship is not to be mistaken for a continuation of their de facto relationship.
Further, the Plaintiff admitted to being in a relationship with another man in 2012/2013, which the Judge could not reconcile with the Plaintiff’s claim of a continuing de facto relationship, with the Deceased post their relationship breakdown in 2009.
Accordingly, the Judge held that the parties were no longer in a de facto relationship post 2010. However, as the Plaintiff had a strong financial dependence upon the Deceased during their de facto relationship and lived in a household with the Deceased during this period, the Judge held that the Plaintiff qualified as an eligible person under Section 57(1)(e) of the Succession Act 2006 (NSW) during the period from 2004 to 2009, and should receive a gift from the estate. Hence, although the Judge rejected the Plaintiff’s claim as a de facto partner of the Deceased at the time of his death, the Plaintiff received the sum of $75,000 from her ex-de facto partner’s estate as provision for succeeding in an alternate claim of being a dependant of the Deceased during period of their de facto relationship from 2004 to 2009. ……… Succession Act 2006 (NSW) s 57(1)(e)
If you wish to dispute a Will or need to find out your legal position in relation to a de facto relationship, call Sydney Wills Lawyers today for a consultation. Our offices are conveniently located in Macquarie Street, Sydney, CBD and close to public transport. Experts in all areas of Estate Litigation for over 20 years!
Ask about our “No Win No Fee” policy on Will disputes!
Call today on, 9221 2779 or email, email@example.com
Contesting a Will - While Living Overseas
Heckenberg Lawyers are able to help you if you are living overseas and would like to contest a Will.
Our expert Wills and Estates Lawyers understand the difficulties that arise when you live overseas and would like to contest a Will in Australia.
We have successfully helped people living overseas who wish to contest a Will in Australia and need to have confidence in their legal team. Our expert Wills and Estates lawyers provide precise and succinct advice on contesting a Will in Australia. In addition, our expert Wills & Estates lawyers handle all the necessary investigations to support a challenge to the Will including:
- Speaking to witnesses and obtaining statements from them in support of the challenge;
- Collating additional supporting evidence in support of the challenge;
- Drafting the required legal documents; and
- All the other varied details and acts that need to be done to successfully contest a Will in Australia.
If you are living overseas and would like to contest a Will in Australia, you need to be aware that time frames apply to making an application to contest a Will. The best way to ensure that you comply with these time limits is, to engage experienced Australian solicitors, who will ensure that your application to contest a Will does not fail because it is out of time.
If you are considering contesting a Will in Australia whilst living overseas, the first thing that you need to do is speak, or e-mail, our expert Wills and Estates lawyers. After considering the circumstances surrounding the Will they will be able to provide you with the following information in plain english:
- Whether you are able to contest the Will on family provision grounds, undue influence, fraud or testamentary capacity;
- What type of evidence is required to be successful in contesting a Will under the various grounds. For example specialist medical reports for contesting a Will made by someone suffering dementia or handwriting expert reports for contesting a Will that has been forged;
- What type of monetary entitlement you may receive from the Estate in the event the challenge to the Will is successful; and
- Whether you would be required to pay legal fees or whether such fees would be paid out of the Estate.
If you are living overseas and wish to contest a Will in Australia then you need an expert Wills & Estates lawyer in Australia to act on your behalf. Our expert Wills & Estate Lawyers have the experience you need to make your claim successful.
At Heckenberg Lawyers we don’t take our clients’ confidence for granted: we work hard to earn it by providing an efficient, cost effective service which puts your interests first and doesn’t cut corners. We take pride in achieving repeat custom and winning clients by word of mouth recommendation.
If you need advice about a Will or an Estate matter please call 02 9221 2779 or email firstname.lastname@example.org to arrange an initial consultation with principal lawyer Graeme Heckenberg at our centrally located Sydney offices.
See our Will Dispute Lawyer & Contesting Wills page for more information on the Wills & Estates services we provide or contact us for advice specific to your situation.
Contesting A Will in NSW
How To Challenge A Will In NSW
How to challenge a Will in NSW, requires expertise from a qualified Wills lawyer. There are important facts and information that you need to know and below the Sydney Wills Lawyer outlines what you need to consider!
Challenging a Will – Is there a time limit?
There is a time limit to Challenge a Will in NSW. Under the Succession Act a Challenge to a Will (called a Family Provision Claim) you need to make an application to the Court within 12 months after the date of death of the deceased.
However, it is possible to Challenge a Will outside this 12 month time period, if you can provide the Court with sufficient reasons for why the time limit should be extended.
If you have missed the time limit you need to speak to an expert Wills and Disputes Lawyer as soon as possible to protect your ability to Challenge a Will.
Who can Challenge a Will in NSW?
The Succession Act sets out the classes of people who are able to Challenge a Will and this includes:
- A person who was married to the deceased at the time of their death;
- A de facto partner of the deceased at the time of their death;
- A child of the deceased;
- A former spouse of the deceased;
- A person who was, at any particular time, wholly or partly dependent on the deceased and who is a grandchild of the deceased or was at any time a member of the deceased’s household; and
- A person who was living in a close personal relationship with the deceased at the time of their death. A close personal relationship is defined to be between two adult persons, whether or related, who are living together, one or each of whom provides the other with domestic support and personal care.
If you are unsure whether you are an eligible person, you need to seek expert advice and guidance on how to Challenge a Will. Graeme Heckenberg and his team will ensure that you meet the correct criteria to Challenge a Will in New South Wales, he has been practicing for over 20 years as a Wills and Estates specialist.
What happens if you want to challenge a Will but don’t live in NSW?
You can Challenge a Will in NSW regardless of where you actually live. You just need to make sure that the legal advice you receive is from a lawyer, that is familiar and has an innate understanding of the law on Challenging a Will in NSW.
Contesting My Father’s Will
My sister wants my brother and myself to challenge my fathers Will as he has left his Estate in Trust to us all. He has stipulated that we are not able to access our inheritance until our 40th birthday. We feel that this is an extreme request and as adults we should be entitled to what has been bequeathed to us immediately. Do you think that we have a case?
Yes, you and your siblings have a case to Challenge your father’s Will under the Succession Act (NSW).
In a recent decision of the Western Australian Supreme Court, Mead v Lemon , the youngest daughter of the deceased claimed she had not been left with adequate provision from the Estate of her father.
The value of the Estate was immense, having an estimate value of over $1 billion dollars.
Under the terms of the Will the youngest daughter had been left approximately $3 million dollars. This money was to be held in Trust until she reached 30 years of age. In addition, under the terms of the Trust, the daughter would not receive any of the money if any of the following occurred:
- She became an alcoholic and/or whose capacity for rational behaviour in a competent and satisfactory manner has been impacted by alcohol;
- She has at any time suffered a conviction relating to drugs, their use or any other illegal association therewith in any recognised form;
- She is or has been in the opinion of the Trustees recently suspected or knowingly had any involvement or association whatsoever in relation to illegal drugs;
- She has, in the opinion of the Trustees has become a drug addict or become involved with illegal drugs as a result of the legal use of drugs for any reason whatsoever;
- She is, in the opinion of the Trustees a member of or in any other way involved with any religious body other than the Roman Catholic, Anglican, Presbyterian, Baptist, Uniting or other similar traditional faiths; or
- She has been convicted of a felony at any time after the deceased’s death or within 10 years before the death of the deceased.
The Court held that the Will of the deceased did not make adequate provision for his youngest daughter. In reaching the decision the Court took into account the size of the deceased’s Estate as well as the manner in which the deceased had set up the Trust.
The Court found that adequate provision had not been made for the youngest daughter when considering the form in which the provision had been made including the conditions attached to the Trust and the age restriction on accessing the monies held in the Trust.
The Court ordered that the youngest daughter receive a lump sum of $25 million from the Estate and that the Estate pay her legal costs in challenging the Will.
If you need advice on avoiding Challenges to a Will in NSW, you need to seek legal advice from an Expert Wills & Estates Lawyer. You need to speak to the expert lawyers at Sydney Wills Lawyers on how to avoid Challenges to a Will. We specialise in Wills & Estate Law and pride ourselves on our open and honest communication with clients.
Call today to see if you have a case on 02 9221 2779.
Contesting a Will - The Supreme Court
Challenging a Will in the Supreme court will depend on the type of Will Challenge involved. There are a number of avenues to challenge a Will including family provision claims, a lack of testamentary capacity by the Will maker, fraud, undue influence or a need to rectify the drafting of a Will.
Family Provision Claims
Family Provision Claims are claims from an eligible person that the deceased did not make adequate provision for their maintenance, education and advancement in life in their Will.
These type of Will Challenges are generally made by a person close to the deceased, such as a partner, ex-partner, child, step-child or grandchild.
There is a set process that the Supreme Court uses for family provision claims. This includes mandatory mediation between the parties, which is aimed at avoiding emotional and financially draining court proceedings. As a result of mandatory mediation ordered by the Supreme Court, the majority of family provision claims will not proceed to Court hearing with the parties reaching an agreement at mediation. This avoids a protracted challenge to the deceased Estate, as well as the need to instruct a Barrister to appear in the Supreme Court.
Fraud, Undue Influence, Lack of Testamentary Capacity
These types of Will Challenges usually require more evidence to show that the deceased’s Will was either fraudulent, or that the deceased was under undue influence at the time they made their Will, or that the deceased lacked testamentary capacity at the time they made their Will.
Will Challenges of this nature will generally commence with a claim filed in the Supreme Court, setting out the facts relied on by the person making the claim against the deceased Estate.
It is common in these type of Will Challenges for both parties in the dispute to be represented by a Barrister in the Supreme Court.
If you are considering Challenging a Will then you need to ensure you receive expert Wills and Estates advice from a lawyer who works solely in this area of the law. This will ensure that your legal advice is practical, relevant and of the highest standard increasing your chances of success.
Contesting a Will - Before They Die
My parents have made a Will leaving everything to charity! My sister and I would like to Contest this Will. Are we able to Contest the Will before they die?
You are able to contest your parents Will before they die. This is because under the Succession Act, the Court has the power to alter or revoke a Will if the person who made the Will is alive and lacks testamentary capacity.
What is testamentary capacity?
For a Will to be valid it is necessary for the person making the Will to be of sound mind, memory and understanding. The person making the Will must:
- Understand the nature and effect of the Will;
- Know the nature and extent of their property;
- Comprehend and appreciate the claims on their Estate which they should give effect to (such as you and your sister having a claim on your parents Estate); and
- Are not affected by delusions that influence the disposal of their assets at the time they make their Will.
What information is required for a Court application to alter a Will?
In support on application to alter a Will the Court requires the following information:
- A written statement of the general nature of the application and the reasons for making it;
- Evidence of the lack of testamentary capacity of the person who made the Will;
- A reasonable estimate of the size of the Estate of the person who made the Will;
- A draft of the proposed altered Will;
- Any evidence of the wishes of the person who made the Will;
- Any evidence of the likelihood of the person regaining testamentary capacity; and
- All other facts that are relevant to the application.
When will the Court alter a Will?
The Court will only alter a Will if it is satisfied that:
- There is reason to believe that the person who made the Will is incapable of making a Will; and
- The proposed alteration is reasonably likely to be one that the person would have made had they had testamentary capacity.
Could I make a family provision claim?
An alternative to applying to the Court to alter your parents Will’s while they are still alive, is the eligibility of your sister and yourself to make a family provision claim against your parents Estates. Family provision claims need to be lodged within 12 months of the date of death of the deceased and allow the Court to consider whether your parents have adequately provided for you and your sister in their Will’s.
Graeme Heckenberg is an expert specialist in Wills and Estates and does not offer No Win No Fee arrangements. However, he does provide expert advice on contesting Wills and an assessment of your case. On consultation all court fees, hourly rates and any other matters are fully disclosed to you so that you are able to decide whether you wish to commence contesting a Will knowing the facts and your chances of winning.
If you need advice on contesting a Will in NSW, you need to seek legal advice from an Expert Wills & Estates Lawyer. You need to speak to the expert lawyers at Sydney Wills Lawyers on how to successfully contest a Will. We specialise in Wills & Estate Law and pride ourselves on our open and honest communication with clients.
Call today for an appointment on 9221 2779.
Contesting A Will - When the Will is Not Up To Date
My grandmother has died without leaving an up-to-date Will. She has left the bulk of her Estate to my father and his brother. My father was estranged from her and had not seen her for many years. I have lived and taken care of her for the past 5 years, but haven’t been left anything. Would I be able to Contest the amount left to my father?
Yes, you would be able to contest your grandmother’s Will.
Under the Succession Act certain groups of people are able to contest a Will and this type of Will contest is commonly referred to as a family provision claim.
The groups people able to contest a Will include spouses and de facto partners, ex spouses and ex de facto partners and children. There are two other groups of people eligible to contest a Will and you may fall into both of these groups. They are:
(a) A person who was, at any time, wholly or partly dependent on the deceased and who is a grandchild of the deceased or a member of the deceased’s household at any time; and
(b) A person who was living in a close personal relationship with the deceased at the time of their death. A close personal relationship means a relationship (other than a marriage or de facto relationship) between two adults, whether or not related by family, who are living together, with one or both of them providing domestic support and personal care to the other.
After confirming that you are an eligible person to make a claim on your grandmother’s Estate, the next step is to determine whether your grandmother has made adequate provision for your proper maintenance, education and advancement in her Will.
The Court will consider a number of matters when deciding whether your grandmother has made adequate provision for you in her Will including:
(a) The relationship between your grandmother and yourself;
(b) The nature and extent of any obligations or responsibilities owed to you by your grandmother;
(c) The size of your grandmother’s Estate;
(d) Your financial resources (including your earning capacity) and your financial needs (present and future) as well as the financial resources and financial needs of beneficiaries named in the Will (such as your father and uncle) or any other person who is making a claim on the Estate;
(e) If you are living with another person the financial circumstances of the person you are living with;
(f) Any physical, intellectual or mental disabilities that you may suffer from as well as any physical, intellectual or mental disabilities of the beneficiaries named in the Will or any other person making a claim on the Estate;
(g) Your age;
(h) Any contribution (financial or otherwise) you made to the improvement of your grandmother’s Estate or your grandmother’s welfare for which you have not received adequate consideration;
(i) Any provision made by your grandmother to you while she was alive;
(j) Any evidence of the testamentary intentions of your grandmother, including verbal statements while she was alive about how she wanted her Estate to be dealt distributed;
(k) Whether you were being maintained, wholly or partly, by your grandmother before her death;
(l) Whether any other person is liable to support you;
(m) Your character and your conduct before and after the death of your grandmother;
(n) The conduct of any other person before or after the death of your grandmother; and
(o) Any other matter the Court considers relevant.
As you can see from the above the Court will consider and take into account your father’s estrangement from your grandmother as well as your care for her over an extended period of time. You would have a strong case to contest your grandmother’s Will.
If you need advice on Contesting a Will, including family provision claims then you need to seek legal advice from an Expert Wills & Estates Lawyer. You need to speak to the expert lawyers at Sydney Wills Lawyers on Contesting a Will. We specialise in Wills & Estate Law and pride ourselves on our open and honest communication with clients.
Call today on 9221 2779 or email email@example.com
Offices coveniently situated in Sydney CBD, close to public transport.
Contesting A Will – When You're Left Out Of The Will
In days of divorces, remarriages and blended families, issues often arise around inheritance. These issues have led to an increase in Wills being Contested by family members, and it is something that can happen in all families – even famous ones!
One famous example that caught the attention of the public, was the legal battle between Gina Rinehart and Rose Porteous over the Estate of Gina’s father Lang Hancock who had married Rose.
Lang Hancock was the major shareholder in a company that was the owner of Hope Downs, an iron ore mine in Western Australia. Lang’s Estate was apparently worth an estimated $150 million dollars when he died in 1992. Lang’s death started an 11 year battle between Rose and Gina, over his Estate including the valuable iron ore royalty rights.
Lang left a Will dated 1991 and three codicils from late 1991 and early 1992. In his Will, Lang bequeathed royalty payments to his beneficiaries. Gina argued that these royalty payments were not personal assets of Lang, but rather owned by the company. If Gina was successful, then Lang’s Estate would be worth a minimal amount and Rose, as a beneficiary of Lang’s Estate, would not receive any money from the Estate.
After years of court hearings and front page news stories Gina and Rose settled the dispute on confidential terms.
However, the dispute over the Lang’s inheritance continues today, between Gina and her children over the Trust that Lang had set up, for the benefit of his grandchildren with Gina as the Trustee. The Trust holds approximately $4 billion in shares belonging to the company and Lang’s grandchildren were allowed access to the funds in the Trust, when the youngest grandchild reached twentyfive years of age. Gina’s children are alleging that Gina, as the Trustee, changed the vesting date of the Trust, with the effect that access to the funds will not occur for a long time. The dispute is currently in the courts.
Famous families and normal families are all open to the potential of inheritance disputes, with the potential to wreak devastation on family relationships as well as financial devastation on the assets being fought over. The best way to ensure that your Estate is not subject to contested Will proceedings, is to obtain expert legal advice on your Will and Estate Planning.
An expert Wills and Estates Lawyer understands what categories of people are able to contest your Will such as ex spouses, de facto partners and step children. They will be able to advise you on how to minimise the chances of your Estate being open to challenge.
Evidence Required to Successfully Challenge A Will
To successfully challenge a Will in NSW, will depend on the evidence that you can put before the Court, as to whether it will be a desired outcome! The stronger the evidence you can provide to the Court, the stronger your chances of success. This evidence should include evidence of your financial position, your relationship with the deceased and any assistance (financial or otherwise) that you provided to the deceased during their lifetime.
It is also important to remember that the Court will also take into account statements from witnesses, that detail comments made by the deceased while they were alive, about who they wanted to inherit from their Estate – this is commonly referred to as statements that showed the testamentary capacity of the deceased.
Contesting A Will - When You Were a Carer
It is possible for a Carer to challenge a Will. In New South Wales the Succession Act sets out the classes of people considered “eligible persons” to challenge a Will.
As well as children and spouses of the deceased, one group of eligible persons to challenge a Will is a person who was living in a close personal relationship with the deceased at the time of their death. A close personal relationship (other than a marriage or a de facto relationship) is defined as a relationship between two adults, whether related or not by family, who are living together, one or each of whom provides the other with domestic support and personal care.
However, a close personal relationship will not exist between two adults, where one of them provides the other with domestic support and personal care for a fee, or reward, or on behalf of another person or an organisation.
In a recent case of the Supreme Court of New South Wales, Bayssari v Bazouni, the deceased’s nephew challenged being left out of the deceased’s Will, on the grounds that he was in a close personal relationship with the deceased.
The deceased Estate was valued at approximately $615,000 and in the deceased’s Will she had left her Estate to be divided equally between her three children.
The deceased’s nephew had resided in the house with the deceased for a period of time before her death and argued that he had provided extensive assistance to the deceased, including purchasing food for the house, home maintenance, paying bills for the deceased and cleaning the house on a regular basis.
The deceased’s children disputed these arguments and provided evidence to the Court that they, not the deceased’s nephew, had provided the majority of support to the deceased. In support of this argument they had evidence from the deceased’s neighbour that, she had observed the deceased’s children assisting the deceased with housework, shopping and cooking as well as taking the deceased to medical appointments.
The Court found that the deceased’s nephew was not an eligible person to challenge the Will of the deceased. The Court stated that although the deceased’s nephew was living with the deceased, they lived substantially independent lives, with the deceased receiving the majority of domestic support and personal care from her children and Home Care. Accordingly, the deceased and her nephew were not living in a close personal relationship.
The challenge to the Will by the deceased’s nephew was dismissed by the Court and the deceased’s three children retained their inheritance. The Court also ordered that the deceased’s nephew pay the legal costs of the deceased’s children.
Inheritance Dispute and a Contested Will
What is an Inheritance Dispute?
When people talk about an Inheritance Dispute, they are generally talking about a family provision claim under the New South Wales Succession Act. Under the Succession Act eligible people are able to make a family provision claim if they believe that they have been unfairly treated in a Will.
Eligible people to make a family provision claim include spouses, ex-spouses, de facto partners, children, grandchildren if they were dependent on the deceased and other people who a member of the deceased’s household and dependent on the deceased.
To be successful in a family provision claim it is necessary to show the Court that the deceased left you without adequate provision for your proper maintenance, education and advancement in life and that you have a financial need.
A family provision claim must be made within 12 months after the date of death of the deceased. However, it is best to act quickly if you intend to make a family provision claim, to ensure that the assets in the deceased Estate are not distributed to the beneficiaries before your claim is made.
What is a Contested Will?
A Contested Will generally refers to a challenge to the validity of the Will of the deceased. There are numerous reasons to Contest a Will including:
- That the Will was not properly signed by the deceased in the presence of two witnesses and therefore is not a valid Will;
- That the deceased did not have the required testamentary capacity at the time they made the Will. Testamentary capacity means that the deceased had a sound mind and memory at the time of making their Will. Testamentary capacity is often challenged when the deceased was suffering from dementia or another type of mental health issue;
- That the deceased was subjected to undue influence by another person when they made their Will; and
- That the Will is forged.
Contesting a Will requires evidence to be gathered from a variety of sources, including family members, friends, medical specialists, legal practitioners, witnesses to the signing of the Will and any other people who can provide evidence of the intention of the deceased in making their Will.
What is the difference between an Inheritance Dispute and a Contested Will?
The main difference between an Inheritance Dispute and a Contested Will is that, an Inheritance Dispute does not challenge whether the Will is a valid Will. Rather, an Inheritance Dispute challenges whether the deceased made adequate provision, for the eligible people in their lives.
Australians Challenging Wills
Why are an increasing number of Australians Challenging Wills?
This is a question that four of Australia’s universities found extremely interesting. So interesting that they researched it and released a research paper called “Having the Last Word – Will Making and Contestation in Australia.”
The research undertaken found that adult children are the most common people to challenge a Will and that challenging a Will has a high rate of success either through mediation or the courts. The research also found that 86% of Will challenges are from immediate family of the deceased with children making up 63% and partners (including ex-partners).
A recent decision of the Supreme Court of New South Wales reinforces these statistics. In Mitar v Mitar  NSWSC 647 the deceased, a widow, left behind four children, three daughters and a son, and an Estate valued at approximately $3 million dollars. In his Will the deceased left the whole of his Estate to his eldest daughter and a right to reside in the family house to his son. The deceased made no provision for his other two daughters however his eldest daughter, based on conversations had with the deceased,divided the cash in the Estate between herself and her two sisters of approximately $200,000 each.
The deceased’s son and two younger daughters all made family provision claims to the Court on the basis that the deceased had not made adequate provision for their proper maintenance, education and advancement in life. Making the son’s claim more complicated was his history of schizophrenia.
The three daughters came to a settlement of their claims during the Court proceedings reaching an agreement that two of them would receive 40% of the first $700,000 in the Estate with the third to receive 20% with the balance of the Estate to be divided in three equal shares. All parties sought that the cost of the Court proceedings be paid by the Estate.
The reason behind the settlement was that they believed this would be the amounts they would receive from the Estate in the event that their brother was successful in his family provision claim.
The deceased’s son was seeking an order from the Court that he be gifted the family home valued at approximately $1.9 million dollars.
The Court had to consider all the needs of the siblings when deciding whether to make an order for the deceased’s son to receive the family home. After consideration the Court found that making such an order would be unfair on the deceased’s other three children.
The Court held that the deceased’s son should receive 30% of the proceeds of sale of the family home, approximately $964,000 and that the daughters receive the percentages they agreed to in their settlement.
Avoid Challenging A Will
I would like to avoid challenging a Will in years to come!
I own a property with two other parties. I invested a sum of money into my mother’s property 5 years ago, although my name was not included on the deeds or any legal document. The property was divided verbally with 60% main share to my mother and then an equal split of 20% each to myself and another person. My mother will be getting married shortly and I am worried about the entitlement my mother’s new husband will have on the property. What is the best legal way of dealing with this matter?
It is extremely prudent that you are seeking to deal with this issue now rather than risking a potentially long and expensive court challenge over a challenged Will in the future.
It appears from your question that, on paper, your mother is the sole owner of the property. In the event of her death, it is extremely likely that your step-father will have an entitlement to the property. Depending on how you proceed now, will determine whether he will have an entitlement to the whole of the property, or will be limited to your mother’s 60% share of the property.
There are a number of ways in which the ownership of the property can be handled so as to avoid a challenge later down the track!
The first action that needs to be taken, is a frank discussion between your mother, yourself and the other part owner of the property, to determine what actions are possible. This could be the purchase by your mother of the 40% of the property owned by you and another. It could entail the sale of the property and the division of the proceeds of that sale on the same basis as the property was purchased i.e. 60% to your mother, 20% to you and 20% to the other part owner – this method may include a reconciliation of what each party has paid towards the property’s general maintenance and upkeep including Council rates and other statutory charges.
It is also an option to have your mother acknowledge the other interests in the property in her Will and clearly state that you and the other part owner have an equitable interest in the property. Your mother and her intended husband could also enter into a Binding Financial Agreement, to protect you part in the property from any claim in the future by her husband.
These are just a few options that are available to you to ensure that your mother’s upcoming marriage, does not endanger your interest in the property that is held in her name.
The next step is to seek expert advice from a Wills and Estate Lawyer on how to protect your interest in the property and minimise and possibility of a Will challenge in the future.
No Will - Who Gets the Estate?
In a recent case we were retained to advise a son whose father died suddenly leaving no will. Many years before, the father and mother had divorced in acrimonious circumstances and the son had lived with his mother. The son had intermittent contact with his father including living with him after leaving high school. The father had not remarried although had established a long-term relationship with a woman, who the son described as a girlfriend.
The son was not advised of his father’s death and not told of the funeral. The girlfriend made an application for Letters of Administration to be granted to her and claimed to be the de facto spouse of the deceased. If this claim was accepted by the Supreme Court she would be entitled to receive the same share in the deceased’s estate as if she was his wife.
Our client was adamant that the girlfriend was not his father’s de facto spouse and instructed us that both his father and the girlfriend had and lived in their own homes as single people, but went out together. The fact that his father had not married the girlfriend, or lived with her in the same house or made a will naming her as a beneficiary was further proof to our client that his father did not regard the girlfriend as a de facto spouse.
The contest in this disputed estate was between the only son and the alleged de facto spouse. If the son could disprove the girlfriends claim to be a de facto then he would inherit all the estate and the girlfriend would receive nothing. If however the claim of de facto spouse was upheld the deceased’s estate would be divided in accordance with established rules regarding people who die intestate. We agreed to act for the son on the basis that we would not charge any fees until the conclusion of the court case.
The Wills Probate and Administration Act rules provide that if a person does not leave a will, that is, dies intestate, the property is to pass to the deceased’s next of kin in the following order of statutory priority:
- Spouse and no children - all to spouse.
- Spouse and children -
- if estate is less than the statutory amount ($150,000 but subject to legislative amendment from time to time) – the whole to the surviving spouse.
- if estate exceeds the statutory amount – spouse receives the first $150,000, all household effects and one half of the balance of the estate. The balance of the estate goes to the children. The spouse has the option of taking the matrimonial home in full or partial satisfaction of their interest.
- Brothers & sisters.
- Half-brothers & half-sisters.
- Uncles and aunts resulting from the remarriage of the deceased grandparents.
What is often overlooked is that if the deceased’s children or brothers and sisters otherwise entitled have themselves died but have left children then those children will take equally the share their parent would have received.
In this case the girlfriend’s claim was challenged and our firm retained one of Sydney’s leading Senior Counsel to represent the son despite our client being of modest means, as we negotiated with the barrister to wait for his fees until the funds of the estate were made available.
The issue for the Court to determine was what were the deceased’s living arrangements having regard to the evidence and affidavits filed by each party. Each case turns on its own facts and evidence. The Courts have held that it is possible to have a bona fide domestic relationship as a de facto spouse without living together. Although living together is a usual and expected feature of a de facto relationship it is not determinative of the issue with the Court looking to the whole matrix of facts and circumstances of the particular situation to determine what does and does not constitute a de facto spouse.
However, in this case, consent orders were able to be filed as a result of the evidence we prepared, including affidavits from our client and from people who had attended the deceased’s home and observed the relationship between him and the girlfriend. This resulted in the estate saving considerable legal costs, as the case did not go to a full hearing.
Contesting a Will - Testamentary Capacity
For a will to be valid, the person making the will must have testamentary capacity. When making a will, the will maker must be of a sound mind, understand the effect of making a will and they must know what assets they have. The Courts can set aside a will if it can be established that the will was not a true reflection of the deceased’s intentions.
In the case of The Estate of Ella Minnie Lillian Bush v NSW Trustee & Guardian  NSWSC 1611, there was a dispute over whether the deceased had testamentary capacity at the time she created her last 3 wills.
On 22 November 2011, 12 November 2012 and 21 February 2013, the deceased made the 3 disputed wills. It was in these wills that she left her entire estate to the Cancer Council of NSW and Wee Waa Anglican Church, although there were different executors in each of the wills. Her previous wills had divided her estate equally to her closest surviving relatives.
Shortly after she created her will on June 2011, the deceased began to show symptoms of diminished cognitive function. One incident was where the deceased failed to recognise her granddaughter.
Another incident was that, she had appointed her brother Cecil as her executor in November 2011, the problem was, that he had been dead for 9 years! The deceased also seemed unaware of the money she had in her estate, even though she had deposited a total of $700,000, at various times to her ANZ bank account.
The Court was satisfied that the deceased had testamentary capacity at the time she made her last 3 wills. The Court found that the deceased’s decision to leave her estate to these 2 charities was, reasonable given her circumstances; she was a regular member of the Wee Waa Anglican Church and her husband and son had died of cancer.
The Court accepted the suggestion that the deceased had mistaken Cecil for her other brother, who was alive at the time, and that she understood it was necessary to change the executors. The Court also accepted that the deceased had been coy about her financial situation, and had only told her enduring guardian of her true financial position.
Although it may appear harsh, or unreasonable to exclude a particular beneficiary, it is does not show a lack of testamentary capacity.
Contesting a Will - Moral Obligation
In contested wills and will disputes the concept of moral obligation is often raised. For instance is a spouse, life partner or de-facto of the deceased is left out of a will they often successful challenge the will on the grounds that the deceased owed a moral obligation to them to provide for them in the will. The Court will assume a testator owed a moral obligation to a number of people e.g. children, adopted children or children of a de-facto relationship the deceased was in at the time of death.
Even where there has been little contact or gaps in contact or occasional contact with the will maker, this can be enough to satisfy the test which places a moral obligation on the deceased to provide for the maintenance, education and advancement in life of children who have been left out of the will and are disputing the will.
The Court determines the issue of moral obligation not to determine the amount to be paid to a claimant in a will contest but rather whether the will maker made “adequate” and “proper” provision for them and is a necessary first step.
All cases turn on their particular facts but broadly speaking you can challenge the will even if you have been estranged from your family, for example where it was the parents decision to exclude the child, or the will maker did not have a close relationship with the child, for example where the father left the home, or had no contact with the child soon after the birth.
Modern Australian law is evolving and the Court now recognises that parents have a moral obligation to provide for their children even if they are disappointed with their children, or children’s life choices, or chose not to engage in the relationship with their children. Even estranged children and children who barely knew their parent have been able to establish to the court that the deceased owed them a moral obligation and have successfully contested a will so they secured their inheritance.
Our firm was recently successful in securing a share of a deceased estate for our client who contested the will as he was excluded because of his homosexuality and his parent’s disappointment with his lifestyle.