Challenging a Will

One of the most common ways for a Will or deceased Estate to be contested is through a Family Provision Application.

It is important for anyone making a Will to keep in mind that the Court is allowed to intervene where a certain person is excluded from a Will. If a family member feels they have been excluded, they can bring a Family Provision Application and “challenge” the Will.

Who can make a Family Provision Application?

The following people are entitled to make a claim if they feel they have not been adequately provided for:

• Spouse, including de-facto spouse;
• Children, including step children;
• Dependants.

However just because a person is eligible to make a family provision application does not necessarily mean that they will be successful in their claim.

The legal test

The legal test is found in the case of Singer v Berghouse (No. 2) (1994) 68 ALJR 653. In this case it was determined that the family provision applications involve a two stage process:

1. Does the will fail to make “adequate provision” for the proper maintenance and support of the applicant; and
2. If so, what provision should be made for the applicant?

Factors a Court considers

The Court will consider other various factors, including:

• Whether adequate provision has been made out of the Estate;
• The size of the Estate;
• How the distribution was effected under the Will;
• The applicant’s financial position;
• The relationship between the applicant and the deceased;
• The needs and claims of the applicant;
• The character or conduct of the applicant.

What to do if you’re challenging a Will?

Making a Family Provision Application is not an easy process and is something that you should discuss with a lawyer in detail. If you are considering making or responding to a Family Provision Application you need expert advice.

Strict time limits apply.

Contact our Wills and Estates team today if you’re considering challenging a Will or would like more information on Estate litigation.

See also