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Who Can Contest A Will

If you’ve been left out of someone’s will, or you believe you should have received more, you may have a legal case. It depends on a few things, including the state or territory where the will was lodged, as well as the relationship you had with the deceased person.

Understanding your rights is a good start.

Can a partner or spouse contest a will?

A spouse/ partner has the strongest rights when it comes to contesting a will. The rights of an unmarried partner, whether heterosexual or homosexual, are usually viewed differently (depending on the state/territory). Getting legal advice specific to your own situation is recommended.

Generally speaking, a spouse/civil partner or an unmarried partner may be eligible to challenge a will if there has been ‘insufficient reasonable financial provision’ made for them in their deceased partner’s will.

To make the judgement, a court will examine key factors including the length of the relationship, as well as the financial resources and needs of the surviving spouse/civil partner or unmarried partner.

Can an adult child contest a will?

If one of your parents created a will and left you out of it, or gave more to your brother or sister than they did to you, you can take legal steps to see if it’s fair.

But before you start fighting, legally make sure you understand these two points:

The legal fight may cost you more than you win back.

The money belonged to your parents, so isn’t it up to them how they distribute it?

It will be up to a court to decide if your claim is valid.

Can a nephew or niece contest a will?

Challenging a will is not up for grabs by any friend or relative.

That’s because the law recognises that a person should be able to leave their assets to whoever they want.

But … the legal reality is that the person who made the will is seen as having more obligation to make adequate provisions for certain people in their lives.

The various states in Australia have different rules about exactly who is ‘an eligible person’ to make a claim on the deceased’s estate. 

In South Australia, for example, the Inheritance Family Provision Act 1972 classifies the following people as eligible:

• the spouse of the deceased person

• a person who has been divorced from the deceased person

• the domestic partner of the deceased person

• a child of the deceased person

• a child of a spouse or domestic partner of the deceased person being a child who was maintained wholly or partly or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his death

• a child of the child of the deceased person

• a parent of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime

• a brother or sister of the deceased person who satisfies the court that he cared for, or contributed to the maintenance of, the deceased person during his lifetime.

Nieces and nephews don’t make the official list. So, even if they had a close relationship, or were dependent on their uncle or aunt who passed away, there is no provision for nieces and nephews to challenge their uncle’s or aunt’s will and stake a claim.

Can grandchildren contest a will?

In households with parents who work full time, or single parent households, reliance on grandparents to be actively hands-on with the care of grandchildren is increasing.

And with 27% of Australian working mothers relying on grandparent care for children, there can be some legal ramifications when it comes to wills.

When it comes to the inheritance rights of grandchildren, the laws around family provision claims vary in each Australian state and territory.

Generally speaking, according to the Succession Act in each jurisdiction, grandchildren can challenge a will if – at any stage of their life –  they were wholly or partly dependent upon the grandparent who passed away.

To understand more about challenging wills in each state across Australia, EA invited specialists from Armstrong Legal to provide a snapshot of the different requirements.

How to contest/challenge a will in:

ACT

In the ACT, a person can challenge a will if they have an interest in the estate of the deceased.

A person has an interest in a deceased estate if they are:

• a beneficiary in a prior will of the deceased

• entitled to a share of the deceased’s estate under the laws of intestacy in the ACT.

NSW

A person can challenge a will if they are:

• a beneficiary named in a previous will by the deceased

• a beneficiary named in the current will

• a person who would be entitled to the estate if the person had died intestate.

NT

In the NT, a person contests a will by making a Family Provision Claim under the Family Provision Act (NT). In the Northern Territory, you may contest a will if:

• you are an eligible person

• you believe you have been left without adequate provision.

QLD

In Queensland, if a person believes that a deceased person’s will is invalid, they can commence proceedings to challenge the will. When challenging a will, the person argues the will is not valid and should not be approved by the court for a Grant of Probate. This process is governed by the Succession Act 1981 and can be initiated by anyone who has a legal interest in the estate of the deceased person. 

SA

A person has standing to challenge a will if they are:

• a beneficiary under the will

• entitled to a share of the deceased’s estate under a previous will of the deceased

• a person who would be entitled to a share of the deceased’s estate under the laws of intestacy in South Australia.

WA

In Western Australia, a person who seeks to challenge the validity of a deceased’s will must do so under the Wills Act 1970 and the Administration Act 1903 in the Supreme Court.

VIC

A person may challenge a will in Victoria if they are:

• a beneficiary under a previous will

• a relative who would receive a share in the estate if the deceased person died intestate

• a person who has a relevant interest (receipt of a share or benefit) in the estate, which will be otherwise affected by the grant

• a person who would otherwise receive a share of the estate if the will was found to be invalid.

The bottom line

Although we’ve chosen to call this article ‘Who can contest a will?’, challenging and contesting a will are seen as two very different things, depending on the state-based jurisdiction.

When a person challenges a will, they are arguing that the will is invalid. This may be for a range of reasons, including that the testator lacked testamentary capacity when the will was signed or that the will is a forgery.

When a person contests a will, they are arguing that the terms of the will are unfair because the will does not make adequate provision for someone close to the testator. The person contesting the will is asking the court to intervene so that the estate gets distributed fairly.

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Financial disclaimer

The information contained on this web page is of general nature only and has been prepared without taking into consideration your objectives, needs and financial situation. You should check with a financial professional before making any decisions. Any opinions expressed within an article are those of the author and do not specifically reflect the views of Compare Club Australia Pty Ltd.