In a situation where you believe to have been unrightfully left out of a family member’s Well, you may have the right to contest it. Disputing a will can raise a number of questions, including who can contest a Will?
A claim can be made under the Inheritance (Family Provision) Act, 1972 (“the Act”) (known as an Inheritance Claim) on the basis that the Will maker failed to provide (or to adequately provide) for a family member in their Will where they had a moral obligation to do so.
Overview:
- Family members who can contest a Will
- Other family members/relatives who can contest a Will
- When can a Will be contested?
Family members who can contest a Will
Section 6 of the Act sets out who is entitled to by making an Inheritance Claim. Certain people are entitled to make a Claim simply as a result of their relationship with the deceased. Those who can contest a Will include:
- the spouse of the deceased;
- a former spouse, being someone who is divorced from the deceased;
- the domestic partner of the deceased, being the partner (regardless of gender) in a close, personal, but unmarried relationship (de facto);
- a child of the deceased; and
- a grandchild of the deceased.
We are often asked how to stop someone contesting a Will in australia. Probate laws dictate that you cannot take away a person’s statutory right to make a Claim against your estate. However, the strength of a potential Claim will depend on the size and share of the estate, the nature of the claimant’s relationship with the deceased, the respective claims of the other interested persons and the financial circumstances of the claimant.
Other family members/relatives who can contest a Will
There are certain family members who have a right to make an Inheritance Claim. However, those who can contest a Will can only do so once they meet certain additional criteria to that described above. Namely:
- a step-child of the deceased (whether a child of their spouse or domestic partner) can make a Claim provided they:
- were maintained wholly or partly by the deceased immediately prior to their death; or
- were legally entitled to be maintained by the deceased immediately prior to their death;
- the parents of the deceased can make a Claim if they can show that they cared for, or contributed to the maintenance of, the deceased person during their lifetime; and
- a brother or sister of the deceased can make a Claim if they can show that they cared for, or contributed to the maintenance of, the deceased person during their lifetime.
The basis of any Inheritance Claim is that the deceased had a moral obligation to provide for the claimant. If this is the case, then it must be shown that the provision made in the Will (if any) was not adequate for the claimant’s proper maintenance, education or advancement in life.
When can a Will be contested?
It is important to note that Inheritance claims are subject to strict time limits. So, if you are concerned or unsure if you’re amongst those who can contest a Will, be sure to get legal advice from an estate planning attorney as soon as possible or you may be barred from making a claim.
For further information about who can contest a Will or if you need to make a Will, please contact our Wills and estates lawyers on 8362 6400 or email us at adelaide_lawyers@beger.com.au. Join our mailing list to receive updates and advice on current issues.
People also asked:
Can a beneficiary contest a will?
A beneficiary may contest a Will for a number of reasons which include that the Will: is unfair; or does not make adequate provision for one or more beneficiaries; or you believe the deceased was of unsound mind or unduly influenced by other beneficiaries.
Contesting a will after probate granted
A Will can be contested after Probate has been granted, but the application must be made within six months of Probate being issued and before the estate is distributed. Provided the estate hasn’t been distributed, it may be possible to apply for an extension. An Executor that is aware of a potential claim on the estate should wait 6 months after the Grant of Probate before distributing the estate and should also advertise the proposed distribution.
Who gets the estate when there is no will
If there is no Will, a deceased estate will be distributed according to the “rules of intestacy” set out in Part 3 of the Administration and Probate Act, 1919. If the deceased had a spouse but no children, then the spouse will receive the entire estate. If the deceased had a spouse and children, then the spouse will receive the first $100,000 and the remainder will be split into 2 shares, with 1 share going to the spouse and the other being divided between the children.
