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Disputing a Will

" Testator's Family Maintenance" 

The freedom to make a Will 

It is said that it is one of the freedoms of our society that a person is free to dispose of their assets by their Will as they think fit.

Courts are loathe to disturb that freedom unless it can be established that the Will maker has abused that freedom by failing to honour their moral duty to make adequate provision for the proper maintenance for an eligible person that a Court concludes the deceased had a responsibility for.

Who can claim? 

From 1997 until 1 January 2015 there was effectively no limitation on who might be eligible to challenge a Will. As a consequence in that period there were frequently challenges to Wills by not only family members but by other more distant relatives and even non-relatives such as carers.

As a consequence of amendments to the relevant legislation which occurred in late 2014 a new Act has come into operation as from 1 January 2015. The amendments are significant and have now limited the class and range of persons that may be eligible to challenge a Will.

The amendments initially proposed by the then Government had far more drastic changes and would have limited even further the potential class of challengers. Fortunately the Government responded to those concerns and the position now is that there are specified classes of persons eligible to bring a claim.

The potential persons or classes of persons who can challenge include:
  • A spouse or domestic partner of the deceased
  • A child or step child of the deceased
  • A person who for a substantial period during the deceased’s life believed that the deceased was his/her parent and was treated by the deceased as a natural child
  • A former spouse or former domestic partner if a property settlement had not been reached with the deceased following separation
  • A grandchild of the deceased 
  • A registered caring partner of the deceased
  • A spouse or domestic partner of a child of the deceased if the child dies within one year of the deceased’s death
  • A member of the household of which the deceased was (or had been in the past or likely to have been in the future) also a member

Both the “old” Act and the “new” Act set out a number of factors to which the Court ought have regard in order to determine whether the deceased has “responsibility” to provide for the challenger.

In addition to the various factors set out in Section 91A of the Administration and Probate Act, a new factor has been inserted, namely that the Court must have regard to what effect any Court order would have on the amounts which are to be received by other beneficiaries in the estate.

The “new” Act, understandably, seeks to limit the number of claims that had previously been brought. This includes for example the case of a child of the deceased (or step child) who is no longer an infant, a full time student under 25 or a person who has a disability. In those cases, the Court must take account of the degree to which that adult child is unable to provide adequately for their own proper maintenance and support.

The provisions of the “new” Act take effect for a deceased who has died on or after 1 January 2015.

The “new” Act does not affect a deceased who died prior to that date.

The “new” Act outlines a number of factors to which a Court would have regard in determining whether a challenger to a Will is to be successful. Those factors include:
  • The terms of the Will and evidence of the deceased’s reasons for making the dispositions in the Will and evidence of the deceased’s intentions in relation to providing for an eligible person
  • The family or other relationship between the deceased and the eligible person including the nature of the relationship and its length
  • Any obligations and responsibilities of the deceased to an eligible person and the beneficiaries of the estate and any other eligible person
  • The size, nature of the estate, and any liabilities to which the estate is subject
  • The financial resources, including the earning capacity and financial needs at the time of the hearing, and for the foreseeable future, of the eligible person, any other eligible person and any beneficiary in the estate
  • The physical, mental or intellectual disability of an eligible person or a beneficiary in the estate
  • The age of the eligible person 
  • Any contribution the eligible person has made to building up the deceased’s estate or assisting in the welfare of the deceased or the deceased’s family
  • Any benefits previously given by the deceased to an eligible person or to any beneficiary 
  • Whether the eligible person was being maintained by the deceased either wholly or partly
  • The liability of any other person to maintain the eligible person
  • The character and conduct of the eligible person or any other person
  • The effects of any order which the Court might make on the amounts to be received from the estate by other beneficiaries
  • Any other matter that the Court considers relevant.

Decided Cases 

As to be expected, there have been many challenges to Wills particularly since the amendments to the Act in 1997.

Clearly, no two cases are the same. Every case will have to be determined on its own facts.

Advising an applicant wishing to challenge an estate, or advising the estate against whom a challenge is made, will involve a detailed examination of the background and history of the deceased, the applicant and beneficiaries. Guidance can be obtained from the many reported cases.

Legal Costs 

If an applicant is successful, the Court, in exercising its discretion will usually order that the applicant's costs be paid out of the estate as well as ordering that the estate costs in defending the claim also be paid out of the estate.

Caution ought be exercised in determining whether to bring a claim as the Court may order that an unsuccessful applicant pay their own costs and that of the estate. Alternatively, the Court may make no order as to costs, thus leaving the unsuccessful applicant and the estate each to pay their own costs.

In some cases, the Courts have found that the applicant's claim was untenable and ordered costs against the unsuccessful applicant.

Conclusion

As mentioned above, each case will be looked at on its own circumstances and will need to be closely examined to determine whether a claim ought be made.

Nevett Ford Lawyers practise in this area and can offer advice and assistance in both considering a claim and also, where an estate faces a claim, defending a claim.
 
Published January 2010


For further advice or assistance

Contact Peter Wilson on 5337 0252 or pwilson@nevetts.com.au

The information in this publication or on this website is of a general nature only. It is not, nor is it intended to be, legal advice. You should consult a lawyer for individual advice about your particular circumstances.
The information on this website is of a general nature only. It is not, nor is it intended to be, legal advice. You should consult a lawyer for individual advice about your particular circumstances. Nevett Ford do not warrant that information contained in links to third party sites are correct and accept no responsibility for the accuracy and reliability or any other matter in relation to a third party site.