Contesting a Will: Family Provision Claim

The validity of a Will can be challenged for a variety of reasons.  The most common reasons are:-

  • A lack of testamentary capacity at the time of making the Will; and
  • Undue influence where someone is pressured to make certain provisions in their Will. 

Testamentary capacity is generally having soundness of mind, memory and understanding the nature and effect of making a Will.  For this reason, a letter of capacity made by a Doctor may be requested before an appointment for estate planning documents to be kept as evidence should there be a likelihood of questions being raised as to someone’s capacity due to their age or medical conditions. 

Suppose there are questions regarding the capacity of the Will maker. In that case, medical evidence may need to be obtained by the Executor during the process of making an application for a Grant of Probate.  If a probate notice is lodged, an objection can be filed stating the reasons why the Grant should not be made.   

To make a challenge, the person must have standing as a person named in the Will or entitled to a provision under the intestacy laws if the Will is found to be invalid.

If the Will is deemed to be invalid, a previous Will may be considered and compared to the later Will by the Court.  If there is found to be no valid Will, the intestacy laws may apply to determine how the estate will be divided.

Family Provision Application

On the other hand, a family provision claim questions the fairness of Will’s provisions.  To make a claim, the person challenging must be classed as an eligible person under the legislation, such as a spouse, child or dependant of the deceased.  They must also be able to demonstrate the need for provision from the estate and that they were not adequately provided for under the Will. 

To make a claim, notice must be given to the Executor within 6 months of the date of death and an application and supporting documentation regarding the claimant’s financial and personal circumstances are to be filed with the Court within nine months of the date of death.   

dispute and contesting a WILL

As part of the process, the parties must participate in mandatory dispute resolution, such as mediation, in an attempt to settle the matter.  If an agreement cannot be reached, the matter will proceed to trial in front of a Judge.

The needs of the applicant will be assessed against the competing interest of any other family members involved.  All the circumstances of the case will be considered by the Court, including:-

1.         The size of the estate;

2.         The maintenance, support or assistance (financial or otherwise) that the deceased  gave the applicant before death;

3.         Whether the applicant paid for that support, maintenance or assistance;

4.         The applicant’s financial position;

5.         The applicant’s maintenance requirements of children/dependants and any special        needs of those children/dependants;

6.         The applicant’s inability to provide for dependants;

7.         The applicant’s state of health;

8.         The applicant’s age/employment prospects;

9.         The applicant’s assets (either solely or jointly owned);

10.       The applicant’s spouse’s assets;

11.       Sources of income of the applicant and applicant’s spouse;

12.       The applicant’s contribution to the building up or preservation of the deceased’s estate;

13.       Support and assistance rendered by the applicant to the deceased in the conduct of the deceased’s business and affairs generally;

14.       The applicant’s relationship with the deceased;

15.       Any competing claims on the deceased’s estate;

16.       Any grounds of disentitlement or reduced provision;

17.       Any special needs or special claim of the applicant;

18.       Any financial disasters that the applicant has experienced; and

19.       The applicant’s desire/need to pursue education.

Related Articles: Death to Distribution : Estate Administration, Estate Lawyer vs Free Will kit

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