What are the grounds for contesting a Will?

The face of older healthy woman holding a cup of tea and smilingThe 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 the grounds for contesting a Will with legal expert Kathy Wilson, an accredited specialist in Wills and Estates at Aitken Partners. This is the first in a series of interviews about Wills over the next two weeks.

What are the grounds for contesting a Will and when do people typically do so?

There are two ways you can challenge a Will. The first is you can argue that the Will itself is not valid because, for example, there is evidence that the will-maker didn’t understand what they were doing [known as a lack of testamentary capacity], that there was undue influence, forgery or fraud, or there is a later Will.

A lack of capacity is the most common challenge about the validity of a Will.
For Wills, the person needs to have ‘testamentary capacity’, which means they need to understand what a Will is; their financial position and who might have claims on their estate. If somebody has diminishing capacity, the question is: at what point would they no longer have capacity to make a Will?

The other way to challenge a Will is to argue that the will-maker had an obligation to provide for you as a dependant, and didn’t adequately do that. This is the most common way to challenge a Will.

These kinds of challenges occupy most of the courts time, and they come about often because of a lack of understanding of what the law provides in Victoria.

Some examples of when a dependant hasn’t been adequately provided for

If you were in a long-term relationship and you couldn’t provide for yourself, you would have a strong argument that adequate provision should have been made for you. Similarly, if you are a disabled child and haven’t been adequately provided for.

How many Wills are contested?

In Victoria, there are about 20,000 applications for probate each year and of those about one per cent have a dispute attached to them in some way.

Do you think the number of contested Wills could be reduced?

I think those figures can be improved upon by having a better understanding of the legal requirements for a valid Will and any obligations to provide for dependants. There are different requirements in other states and in other countries, particularly about providing for dependants. In some countries there are forced heirship laws. In some cultures, there are entrenched views about who should inherit, for example the oldest male child may be preferred to a spouse. Getting good advice and following that advice would minimise successful claims.

There’s a fair amount of information and education to help people understand the issues that should be considered in making a Will. That’s why I think the Your Will publication is so good.

If people are better informed they can start by making a Will that is going to withstand any scrutiny. The second thing is to help people understand what their rights are in terms of challenging a Will.

The third is to get people to think about what they really want. What are they seeking to achieve by contesting the Will? Because often you can’t fix broken relationships in a family through some legal redress.

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

Next week: Should I contest the Will?

This page was last updated on November 29, 2017