Why yes, of course. Beneficiaries of a Will can include families and friends with whom the Will-maker had a close personal relationship. But why do they contest Wills? Some beneficiaries may feel like they were unfairly provided for, so they contest a Will. Family members and even close friends might have wanted more or believed that there were discrepancies in the Will.
Now, you might have clicked on this article because you are either:
- A Will-maker who wants to prevent Will contests
- A beneficiary who wants to contest a Will
Whatever your answer is, we have you covered in this article. In most cases, anyone can contest a Will, but you need to have a good reason for it! For Will-makers, you may also want to read this to help you prevent contests on your Will in the future.
How Does a Will Work?
If you want to know the answer to the question "Can Wills be contested?", then you should know how a Will works. To put it simply, a Will is a legal document that sets out a Will-maker's last wishes for his estate. One might think people can simply put how their estate will be distributed on a piece of paper. However, creating a Will is more than that.
A Will goes through a lot of revisions and has legal requirements. People with valuable and big assets will need to prioritise creating a Will. Potential beneficiaries will look forward to inheriting them, as they can help them maintain their life's stability. Due to this, family disputes erupt over the deceased's estate.
Who Can Contest Wills?
We want to tell you now that potential beneficiaries of the deceased have the right to contest a Will. The Succession Act 2006 (NSW) enumerates the following eligible people to contest a Will:
- Spouses and former spouses
- De facto partner or domestic partner
- Children
- Grandchildren
But can Wills be contested by non-family members? Yes! This is still stated under the Succession Act 2006. This includes dependents and any other people who claim to have a close personal relationship with the deceased.
Note: For other Australian states, the Acts that govern family provision claims are:
- Family Provision Act 1972 (WA)
- Family Provision Act 1969 (ACT)
- Succession Act 1981 (QLD)
- Administration and Probate Act 1958 (VIC)
What Is a Family Provision Claim?
A family provision claim can help beneficiaries contest a Will. Are you a beneficiary who is eligible to make a claim? Were you left out of the Will, or did you not receive adequate provision from the Will? Then you are an eligible person to make a claim.
They must file their family provision application to the Supreme Court, 12 months after the deceased's death. After receiving your application, the Supreme Court will look at the following considerations if it wants to make a family provision order:
- Your connection to the deceased and any responsibilities the deceased had towards you.
- The value and location of the deceased's assets.
- Your current and future financial needs, as well as any other sources of support you receive.
- Your age, any disabilities, and your character.
- Any way you helped increase the estate's value, or any support the deceased provided you during their lifetime.
- Whether anyone else is responsible for supporting you.
- Applicable customary law if the deceased was Aboriginal or Torres Strait Islander.
- Any other claims made against the estate.
- Any additional matters the court deems important.
Can Wills Be Contested: What Beneficiaries Should Prove
Beneficiaries cannot ask themselves, "Can wills be contested?" and then proceed with a case without evidence. As seen from above, the Supreme Court will consider a lot of factors to approve a family provision claim. After all, this is the estate of the deceased, and they want to ensure that rightful beneficiaries receive them cleanly.
As long as you have good intentions for the estate and you firmly believe that you deserve a better provision, then you should:
- Prove how close you were with the deceased, and no, you shouldn't simply state this. Make sure you have messages, pictures, or even videos that can help prove your closeness with the deceased person during his or her lifetime.
- Explain your personal circumstances, your personal income, and any financial need you are receiving. The Court will need to assess how much you still need if you have received inadequate provision.
- Provide evidence of fraud, undue influence, or coercion. Sometimes a Will-maker's lack of mental or testamentary capacity is also solid proof. If you make these claims, then you should challenge the Will since this can revoke a Will's validity. For example, other family members threatened the Will-maker that they would all get an equal share, or else they would burn one of his properties down.
If you fail to provide evidence, the court will uphold its validity. Speaking of a Will's validity, did you know there's a process for validating a Will? Click here to read our blog on probate and what happens during probate proceedings.
Can Wills Be Contested Again After Failing To Do So?
You can try to contest a Will again after you failed your first claim. However, imagine the legal costs and legal fees you'll have to pay again. Yes, Will contests are worthwhile and you can win, but the chances of failing are never zero.
You'll never know what other parties might also pull off in court proceedings. Aside from the legal fees for the preparation, there are also court fees that you will have to cover. So, from the get-go, you would want a successful Will contest or maybe enter into mediation with other parties.
I Don't Want People Contesting My Will in the Future
Don't we all? Wills represent our last wishes, and we can only hope that our beneficiaries will respect this in the future. In serious matters like this, we need to be preemptive!
You can prevent people from contesting your Will if you use a trust. One of the common types of trust that you can use is a testamentary trust. This type of trust takes effect after a Will-maker's death, which is different from a living trust. A living trust is in force during your lifetime.
Living trusts manage assets now and after death while bypassing probate, which offers privacy and flexibility. A testamentary trust is set up in your Will to manage assets for beneficiaries only after your death and probate. This type of trust can offer a structured distribution of assets for beneficiaries who need long-term help.
Now, can a Will be contested with a trust? Yes, but it can significantly lower the chances of a successful contest or challenge.
We'll Help You Contest a Will or Conduct Mediation— Whichever Works!
When you are unfairly provided for in a Will, you have a range of choices. You can either commit to contesting the Will, or you can mediate with the other parties. We all want a fair estate administration process and to avoid family disputes altogether. However, other beneficiaries do not wish this and won't back down from a court fight.
We at JB Solicitors can ensure that we can protect your rights and explain your legal obligations in such matters. If you ask yourself, "Can Wills be contested with our help?", then the answer is yes. Just make sure to provide as much evidence to us, and we'll do the rest. Who knows, we might find more evidence to back up your claims for a Will contest!
For people who want to prevent a Will contest, we can set up trusts for you and ensure that your Will is followed. We'll act as your executor and administrator to provide more legal protection for your assets.
So, what are you waiting for? Are you a beneficiary who wants to contest a Will, or do you want a Will so valid, no one can contest or challenge it?
Contact us today and let our Wills and Estate lawyers handle estate disputes with ease and professionalism.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
