Contesting a will

 

Though your will is about having your assets distributed in your preferred manner after your death, there are circumstances in which a will may be contested. To ensure your will is carried out according to your exact preferences, it is prudent to familiarise yourself with the possible grounds of contest and, accordingly, strengthen your will and the procedures surrounding Its creation.

When can a will be contested?

There are several ways in which a person may contest a will, although they are all limited in their application. A challenge may be made where:

1 it is alleged the will was incorrectly executed or was tampered with;

2 the will was executed under pressure from others or the willmaker was incapable of making a will;

3 insufficient provision has been made in the will for a spouse, domestic partner, children, or others to whom the willmaker has an obligation; or

4 the will has been incorrectly administered.

Before any challenge to a will is contemplated legal advice should be obtained as the procedures are complicated, expensive and time consuming.

Interpreting the will

Where it is not clear what the will means, the executor or someone interested in the deceased’s estate may apply to the court to have it determine what the willmaker meant in the will. For example, the willmaker may have left a gold watch to Fred. If the willmaker in fact owned two gold watches, it must be ascertained what the gift means.

The court has only limited power to go behind the actual words used on the face of the will. Its power is limited to interpreting the words of the will in the context in which they appear, according to their primary meaning. Virtually no outside evidence may be called to interpret the will unless there is an ambiguity in the language (s 22 Wills Act 1958 (Vic); s 36 Wills Act 1997 (Vic)).

Testator’s family maintenance

When there is no doubt that the testator was legally capable of making a will, and the will is the deceased’s last will, and the will is clear and unambiguous, there is little opportunity to contest its substance. The Supreme Court has very limited power to alter wills.

As a general principle, a person can give their estate to anyone. This was seen as being unjust when the willmaker’s close family may suffer hardship as a result of the deceased’s whims to give money elsewhere rather than support their immediate family. Legislation was passed to change the situation. This is contained in part IV of the A&P Act. The object of the legislation is to allow the court to award to an eligible applicant a portion of the deceased’s estate, if the deceased has an obligation to provide for someone and has made no, or inadequate, provision for the applicant in the will in the light of the applicant’s financial situation. Testator’s family maintenance (TFM) proceedings may be brought even where the deceased died intestate.

When to apply for testator’s family maintenance

A TFM application must be made within six months of the grant of probate or letters of administration. If you are contemplating a making a TFM application, you should file a Form 3-6A and B Administration and Probate Rules 2004 with the Probate Office, so you will be notified when a grant of probate or administration is made. You must still issue your proceeding within six months. The court may give an extension of time so long as the estate has not been completely administered (s 99 A&P Act). An application can be made in either the County Court or the Supreme Court of Victoria, but cannot be brought in the Magistrates’ Court, or at VCAT.

Applicants

In the case of a person who died before 20 July 1998

The category of people who may challenge the will (if any) is limited to the deceased’s widow, widower or children. “Widow” includes any former wife of the deceased who was at the time of death legally entitled to receive maintenance. “Children” includes illegitimate children provided that the child’s parents were married to each other at conception or subsequently, or paternity was admitted by, or established against, the father during his lifetime.

For deaths after 20 July 1998

The willmaker must now make provision for any person for whom the deceased had a responsibility. De facto spouses and same-sex partners (now collectively called “domestic partners”) may therefore now have a TFM ground to seek further and better provision under a will or intestacy if insufficient provision has been made for them. Section 35(2) of the Relationships Act 2008 (Vic) (“Relationships Act”) (formerly s 275 of the Property Law Act 1958 (Vic)) and s 4AA of the Family Law Act 1975 (Cth) sets out the various criteria that must be considered in deciding whether a person is a domestic partner.

For deaths after 1 January 2015

Significant changes have been made to the persons who can claim under the legislation. In the case of persons who have died after the 1 January 2015, now only persons who are “eligible persons”, as defined by section 90A of the A&P Act, are able to bring a claim.

There are three categories of eligible persons:

1 Spouses and domestic partners, children and step and assumed children under 25 years of age.

2 Adult children, and assumed children and step-children (provision for whom is limited to the extent that they cannot provide for themselves).

3 Registered caring partners, grandchildren; spouse or domestic partner of child of deceased testator and member of household of the deceased. These classes must be financially dependent upon the deceased at the time of death and the provision (if any) awarded must be proportionate to the degree of dependency on the deceased.

Criteria for a redistribution

Not all applicants who feel that the deceased has inadequately provided for them may receive an order from the court. For deaths after 1 January 2015, an applicant must be an eligible person as defined by section 90A of the A&P Act. For deaths before and after that date the test applied is whether the deceased had a moral responsibility to – and failed to – observe their legal obligation to make adequate provision for the applicant’s proper maintenance and support (s 91, 91A A&P Act). It is vital that an applicant also show an economic need for support that the deceased should have met in the will. In the case of claims where the deceased died prior to 1 January 2015, close family members are more likely to have provision made for them than people who are not closely related to the deceased testator, or who are no relation at all. A challenge will not be successful merely because the will was unfair or unjust in its distribution, if the applicant has received their legal due under the will.

Section 91(4) of the A&P Act (for deaths prior to 1 January 2015) and section 91A of the A&P Act (for deaths after 1 January 2015) set out the factors the courts have to consider in these applications. The provisions of part IV of the A&P Act apply whether there is a will or not. In the case of deaths after 1 January 2015, the court is directed specifically to look to the deceased’s will and intentions and reasons for making the last will.

Principles applied by the court

Over the years courts have devised guidelines in determining what amounts to “adequate provision for proper maintenance and support”. The legislation also sets out various criteria (s 91(4), 91A A&P Act) that the court must consider in evaluating a proceeding brought under the relevant part.

Some of the important considerations are:

the net value of the estate, i.e. what its size is after debts, funeral and testamentary and other liabilities have been deducted (obviously, if the estate is not big enough to be capable of redistribution the action cannot succeed);

the age, sex and health of the applicant;

if the applicant received any gift, transfer or other provision made by the deceased during their life (s 91(4)(l));

how close the relationship was between the applicant and the deceased (s 91(4)(e));

the financial resources of the applicant and other beneficiaries or claimants – an applicant will only be entitled to provision if an economic need for provision can be shown;

the character and conduct of the applicant;

the extent to which, and basis upon which, the deceased may have maintained the applicant;

the applicant’s contribution to building up the estate or contribution to the welfare of the deceased and their family;

the obligations and responsibilities of the deceased to the applicant and other persons;

any prior benefits given to the applicant.

The court has power to refuse the application if, in its opinion, the applicant’s character and conduct disentitles them from benefiting under the provisions of part IV (s 91(4)(o)). Grounds for refusing relief might include violence towards the willmaker, dishonestly dealing with the willmaker, or serious abandonment of obligations to the willmaker.