5 Ways a Dispute Over a Will Can Be Initiated

More people than ever before appear to be prepared to dispute some aspect of a Will. There are many popular theories why this might be the case. One is the increased complexity of family life, such as blended families. People may marry more than once, cohabit outside marriage and, then you might add children, adopted children and stepchildren into the mix.

Financial pressures may increase the importance of an inheritance to get on the housing ladder or retirement. This may, for example, affect the behaviour of some Executors in administering an estate to benefit themselves at the expense of other beneficiaries or family members. In other cases, elder abuse may be suspected if an elderly person is perceived as being vulnerable to the influence of someone who may have persuaded them to change their Will to favour them.

In this article, we look at the types of claims that can be made, who can contest or challenge a Will and how a dispute might be initiated.

The main types of claim when disputing a Will

The principal types of claim when someone wishes to dispute a Will are:

• contesting a Will because an individual feels that they have not received an adequate share;
• challenging the validity of a Will because of a lack of mental capacity, or a lack of knowledge of the contents by the Will maker, or there has been ‘undue influence’ over its contents;
• disputing the Will’s proper administration.

Who can contest a Will?

In NSW, the broad groups of persons who are eligible to contest a Will include:

• Spouses, both current and previous, including de facto partners;
• Children including adopted children. Stepchildren and grandchildren may be eligible if they were dependent on the deceased;
• Anyone who shared the same home with the deceased in a close personal relationship.

If you belong to one of these groups and believe that you are entitled to more of the estate than you received, you potentially have a valid claim on an estate.

Who can challenge a Will?

In NSW, you can challenge the validity of a Will if you were named as a beneficiary in an earlier Will, are a beneficiary in the deceased’s last Will, or would be a beneficiary under the law if the deceased were not to have a Will.

A person is not entitled to challenge the validity of a Will if they do not have an interest in the deceased’s estate.

1. Contesting a Will - Family maintenance

This type of claim is not against the validity of a Will but involves one or more persons believing they were left without adequate provision for their maintenance, education or general advancement.

A deceased person can decide to leave their estate to whomever they wish. It is an important principle in law and has a name: testamentary freedom. However, this discretion is not unconstrained. Australia also has laws to protect eligible people who have been left with little or nothing in a Will. A claim may be possible against the estate of the deceased. This is referred to as a ‘family provision claim’.

2. Challenging a Will- Lack of testamentary capacity

This type of claim is a challenge against the validity of the Will. If a person is named as a beneficiary in a previous version of a Will but was removed from the last version when the Will maker lacked the mental (testamentary) capacity, they may be able to challenge the latest Will. The Court will decide based on the evidence.

3. Challenging a Will - Undue influence (and fraud)

The basis of this kind of claim against the validity of a Will is that the Will maker was pressured into making the Will they have.

It would have to be shown that the deceased was ‘unduly influenced’ by a person or persons to sign a Will that was not in line with their true wishes.

4. Challenging a Will - Lack of knowledge and approval of the Will’s contents

A person writing a Will is presumed to have known and approved its contents. However, there may be reasons or ‘suspicious circumstances’, leading to the belief that this is not the case. This might be, for example, because a beneficiary prepared the Will and the Will maker did not read the Will or have adequate time to consider its terms.

They may not have had independent advice, or the Will may seem to be quite different from earlier versions with persons excluded who would reasonably be expected to be included as a beneficiary. In this event, the onus is on the party supporting the validity of the Will to demonstrate that the Will maker knew and approved its terms.

5. Disputing a Will - Breach of trust

This type of dispute concerns the administration of an estate. If a beneficiary of a Will believes the Executor has failed to perform their duties, they can ask the Court to be removed. This request might be made because of unwarranted performance delays by the Executor or if there is a conflict of interest. For example, in a case heard by the NSW Supreme Court, it ordered the Executor’s removal because he tried to transfer shares to himself instead of the named beneficiaries in the Will.

Time limits for making a claim

In NSW, contesting a Will for a family provision claim must be made within 12 months of the date of death.

There is no time limit for challenging a Will on the grounds mentioned above though this is preferably done before the grant of probate, which confirms the authority of the Executor to administer the deceased’s estate. If not, the onus falls on the challenger to prove the grounds for revoking the grant and explain the reason for the delay.

Contact our Will Disputes Lawyers in Sydney, NSW

Whatever the reason, disputing a Will can be complex, and you will need expert legal assistance if a claim is to be successful. Please contact Szabo & Associates Solicitors on 02 9281 5088 or use the online contact form.