Contesting a Will

Contributed by Emma Bragg, Tetlow Legal and current to March 2022. Based on the contribution of Charles Rowland.

There are several ways in which a will may be contested. In each case you should consult a solicitor.

Is the Will valid?

A court may declare that a will is invalid on several grounds:

• the will was not properly signed and witnessed (bearing in mind the Supreme Court's power to grant probate to a will which lacks formalities: s 11A Wills Act 1968);
• the will was superseded by a later will made by the testator;
• the testator did not have the mental capacity to make a will;
• if material in the will has been obliterated by the testator after it was signed partial invalidity may result;
• the will has been revoked by the testator; and/or
• there are suspicious circumstances surrounding the making of the will, that is, a person who benefited under the will drafted it, or the testator was unduly influenced, or the victim of fraud, in drawing up the will.

The last mentioned ground for declaring a will invalid (suspicious circumstances) needs further comment: where a person who has helped in the preparation of a will is also a beneficiary under that will, that person may have to satisfy the court that there was nothing improper in drawing up the will or helping the testator to draw up the will. It is therefore very unwise for a person to help a family member to draw up a will, particularly if the family member is vulnerable.

Interpreting Wills - what does the will mean?

Wills, particularly homemade wills, are liable to present difficulties of interpretation. The executor or any other person who may be affected by the meaning of the will may ask the court to decide what the will means. Sometimes apparently very simple words create severe problems.

For example, a testator writes in their will "I give my piano to my son's wife Ann". This seems clear enough at first glance. Say, however, the testator, after making the will, sells the piano and buys another. Does the gift in the will cover the new piano? This is a question which is very difficult to decide. Again, say the testator's son and his wife Ann get divorced after the will is made. Does Ann, the testator's son's ex-wife, take the piano? This is another very difficult question.

The court has very limited power to go behind the will in deciding what the testator actually meant. Further, only the Supreme Court has jurisdiction to interpret wills, so interpretation of a will by the court is very expensive. Two things follow from this:

• wills should be professionally drafted; and
• where a will is difficult to interpret, those involved would usually be well advised to negotiate a compromise if possible.

Family member not adequately provided for

A close family member or person with a moral claim on the deceased can ask the court to order that provision for them be made out of the estate if the provision made for them is inadequate. This ground for challenging an estate is called Family Provision.

Family Provision

The principles relating to family provision are laid down in the Family Provision Act 1969 (ACT) ('the Family Provision Act').

While it is true that a testator is free to leave their property to whoever they wish, there is a statutory provision in the ACT, and in all other jurisdictions in Australia, which provides that an ‘eligible person’ who has been left without adequate provision for proper maintenance, education or advancement in life in the circumstances, may apply to the court for an order making adequate provision for proper maintenance for the eligible person out of the testator's estate.

Eligibility

In the ACT an eligible person includes the deceased's:

• ‘spouse’;
• ‘eligible partner;
• ‘domestic partner’;
• child;
• grandchild;
• former partner or former spouse;
• parent of a child of the deceased;
• stepchild;
• parent; or
• ‘a person who was in a domestic relationship with the deceased person for 2 or more years continuously at any time’.

The deceased’s stepchild is entitled to claim only if they were maintained by the deceased immediately before the deceased person's death. Special limitations also apply to parents and grandchildren of the deceased.

The definitions of some of these relationships are given in the Glossary of Legal Terms Used.

Satisfying the Court

If the Supreme Court is satisfied that the deceased person had a moral duty to make such provision for the applicant, and that the will (or the intestacy laws, if the deceased left no will) does not do so, the court can in effect make a codicil to the will (or modify the operation of the intestacy laws) to ensure that adequate provision for proper maintenance is made for the applicant out of the deceased person's estate. The court's order does not cancel the will, it operates as a codicil to the will and leaves the will operating to the extent that it is unaffected by the court's order.

So, for example, a court may order that the testator's estate provide the family home to the surviving spouse where the testator, for reasons of their own, left the family home to some other person. The rest of the will would continue to operate as the testator intended. Nevertheless, when the court does make an order, particularly if the estate is not large, the effect is more or less to make a shipwreck of the testator's intentions.

Whether or not an order is made depends on all the circumstances of the case, and even adult children who are able to support themselves may secure orders.

Reasons for Leaving a Person out of your Will

If a testator has strong reasons for leaving some close relative out of the will the testator should discuss the matter with the professional will drafter. If there are good reasons for disinheriting a close member of the family, there are steps which can be taken to protect the estate, but the question is a delicate one, and professional advice is needed.

Time for Making Application

A claim for family provision in the ACT must be made within 6 months after the date that probate or letters of administration is granted, unless the court is prepared to grant an extension of time (see s 9 Family Provision Act 1969).

If you feel that you have been unfairly treated by a will of a family member and that you may be an ‘eligible person’ in the sense described above, you should consult a solicitor urgently.