Should I challenge the Will?

The death of a loved one is an emotionally challenging time, made even more complex if you feel you have been unfairly left out of a Will.

Interview by Clare Kennedy

This week we explore when it is reasonable to contest a Will with legal expert Kathy Wilson, an accredited specialist in Wills and Estates at Aitken Partners. This is the second in our series of interviews about Wills.

When do you think it is reasonable or advisable to challenge a Will?

That will vary with the individual. First you should work out what you are trying to achieve. Often people come in and want to challenge the Will but the estate is so small there is no point. There’s no point getting to the end and finding you have had an empty victory.

So, first you need to establish what assets there are and, secondly, why you might challenge the Will. It might be for money or it might be because you have been seeking some sort of compensation or validation of your place in someone’s life. There is often a contest in blended families between the second family and the first, as they lobby for position in the will-maker’s life.

So, sometimes it’s about vying for affection or love in a way?

Yes, it’s about vying for someone’s affection and being, or feeling, displaced.

Tell us about some cases that involved a contested Will?

I acted for a woman who had been married to her husband for over 50 years. He was a violent abusive man and when he died he didn’t even leave her enough money to buy a little flat. The house was in his name; he was a very controlling individual. She had been sleeping on a fold-down bed in the laundry for twenty years. After he died she discovered he’d left her very little, so I was really pleased to be able to get a better outcome for her

That’s an example I often give when someone asks me why should you be allowed to challenge a Will. If you’ve been married for over 50 years and you’ve been a stay-at-home wife, you’ve raised the family, cooked the meals and nurtured your partner, the law recognises that there is an obligation to provide for you.

In another case I acted for young children and their mum who was a paraplegic through injury. Her husband had repartnered and then discovered his new partner was in another relationship, so he suicided. In the meantime, he had made a new Will and left out his first family. So, the first wife who was a paraplegic and children had no provision. I was really pleased to be able to get an outcome for them.

Those cases are the more touching ones. Most thinking people in society would say they ought to be able to challenge the Will. The ones that are less understood are where people are just fighting over a lot of money and it’s just a difference of how many millions they get…

What is the first thing you should do if you think you’ve been treated unfairly in a Will?

I’d see a lawyer first to find out what your options are. Then, if you’re able to, you should have a conversation with your family. If you understand your legal rights then that can provide the basis for a conversation. Sometimes these sorts of problems can be resolved through a conversation facilitated by a family member or a long-term friend of the family. I often say to clients: try that approach first rather than irreparably damaging family relationships. That’s a much better way to go.

It’s important to know it’s a very emotionally challenging time and people will be particularly sensitive so having a facilitated discussion is often better than dealing with [the issues] directly.

For more information, take a look at our new free publication, Your Will, now available to order or read online.

This article is relevant to the law in Victoria

This page was last updated on November 29, 2017