Contested Estates: Can you challenge a Will?

Article Nicolas Moore 17 March 2021

The term 'contesting an estate’ refers to a claim made against a Will by people who feel that they may have been treated unfairly in the Will, or would like to challenge a Will in some other way. The process of contesting an estate or making a claim against a Will can be complicated and requires expert advice from an experienced Wills and Estate lawyer.  CDQ's Contested Estates lawyers Kogarah, St George, Sutherland and Canterbury-Bankstown can help you to determine the likelihood of a successful claim, and if you choose to proceed, represent your best interests in any negotiations or potential court action.

Whether it is a claim made by a family member who has been left out of the Will, or a loved one who feels that they should receive more from the estate, challenging a Will is becoming increasingly common.   One of the main reasons for this is the growing 'complexity' of families, with an increasing number of people divorcing, re-marrying, having children to more than one partner, or raising step-children and grandchildren as their own.

Our Contested Estates team understands the difficulties many families face and can provide the expert advice you need, whilst helping you to navigate an emotional situation.

Who is Eligible to Challenge a Will?

In Australia there are strict rules concerning who is able to challenge a Will and only the following categories of people are eligible:

• the husband or wife of the deceased at the time of death

• the de-facto partner of the deceased

• a child of the deceased person

• a former husband or wife of the deceased

• a grandchild or member of the household of the deceased AND wholly dependent; or,

• a person with whom the deceased was living in a close personal relationship at the time of their death.

What is Involved?

If you think that you may be eligible to make a claim against an Estate, or challenge a Will, the first step is always to seek expert legal advice as soon as possible.  If a claim can be made, it is important that the process is started before the Estate is finalised and distributed to the other beneficiaries.

An experienced Contested Estates lawyer can determine: 

 i) whether or not you are eligible to make a claim; 

ii) whether it might be successful; and,

iii) what the possible outcome may be.  

This experience and knowledge is critical because if a claim is unsuccessful it can prove to be a very costly exercise for the person lodging it.

When a claim is made, the Court will consider the following factors (among others) when making their decision:

• The financial position of the person making the claim, and the financial position of the other beneficiaries of the estate

• Any provision that was already made to the person making the claim

• The current and future financial needs of the person making the claim

• The relationship between the deceased and the person making the claim

• The overall value of the estate

• Any physical, mental or intellectual disability of the person making the claim

• The age of the person making the claim

• Whether the person making the claim was being maintained wholly, or partly, by the deceased.

One of the most common misconceptions people have in this area is that if someone has already been left something in a Will they are not legally entitled to make a claim for anything further.  This is not correct - the law will also look at whether or not the person has been "adequately provided for" and if they are eligible, then a Court may also rule that they receive a greater portion of the estate.

For more information on challenging a Will, or defending an estate from a claim made against it, contact the experienced Wills and Estates lawyers Kogarah, St George, Sutherland and Canterbury-Bankstown at CDQ for advice on 02 8566 2400.