Any person who can show that the person who made the Will had a 'moral duty' to provide for them can challenge a Will by starting a Supreme Court process called 'testator's family maintenance'. Generally the person who wants to make a claim has to be closely related to the person who died.
Studies have shown that contesting of Wills in Australia has an average of 74 percent of Family Provision Claims in Australia which are successful. The success rate in Queensland is even higher at 77 percent.
A beneficiary can contest a Will if they're an “eligible person”. Otherwise, they cannot contest a Will unless they lived with the deceased and were wholly or partly dependent on them. But they should speak with a lawyer first.
In Australia, you can contest a Will after the grant of Probate is issued. However, the Executor must move quickly with contesting because it's almost impossible once the assets are gone. There are different conditions to contesting a Will depending on the state or territory.
A Will can also be cancelled by changes in your personal circumstances such as marriage or starting a de facto relationship, separation, divorce or ending a de facto relationship.
Disinheriting a child in a will in Australia is possible, but not necessarily straightforward. Australian law gives its citizens the freedom to draw up a will that nominates who their estate will be distributed to upon their death, but are their children necessarily included?
Generally speaking, most children are given an inheritance from their parents. The only exception to this is if the parent explicitly excludes them as a beneficiary. Unfortunately, this doesn't fully protect your wishes as a judge may decide to overrule the person's wishes making the Will to their discretion.
The success rate of contesting a Will depends on a number of factors and if you are considered an 'eligible person'. But a report conducted in 2015 by The University of Queensland found that 74% of cases challenged in court, and 87% of those that went before a mediator, resulted in the Will being changed.
The simple answer is that you can't ever stop someone contesting your will. This is because state and territory legislation across Australia allows 'eligible' people to make a claim against an estate if they can establish that they have not been adequately provided for in the deceased's will.
In most cases, contesting a will means that you pay all legal costs and other associated fees out of pocket, even if your case is unsuccessful. If you're contesting your father's will, for example, you could face costs of $2,000 or more.
Determining the amount it will cost to contest a will in NSW can be a complicated process. The average cost to contest a will would be $5,000 – $10,000 if the matter stays out of court. If the matter goes to court, the average cost to contest a will would be $20,000 – $100,000.
If you're an “eligible person” or an “interested person” who is contesting a Will, legal costs may be paid by you directly or by funds from the estate depending on what happens in this order: whether the matter has been resolved during mediation.
In family provision cases, the general rule is the claimant's costs are paid out of the estate if their claim is successful. If the claimant is not successful, they can be ordered to pay the estate's costs as well as their own.
In New South Wales a claim must be lodged within 12 months of the date of death. In Victoria I claim must be lodged within 6 months of a grant of probate. In Queensland a claim must be lodged within 9 months from the date of death however notice of the claim must be given within six months from the date of death.
A testator will sometimes include a “no-contest” clause in a will in the hope of avoiding a Family Provision Claim. A no-contest clause typically states that anyone who contests the will forfeits their bequest. This type of clause is enforceable in some other countries but is non-binding in Western Australia.
It usually takes an executor from nine months to one year to administer an estate. This time starts from the date they begin administering the estate. More complicated estates can take longer.
The most straightforward way to minimise the prospect of someone contesting your will is to make adequate provision for anyone who might otherwise successfully contest the will. It is not necessary to make equal provision for all beneficiaries, only to do what a reasonable testator would do in the circumstances.
Australian law allows an eligible person to contest a Will after Probate has been granted and court order on asset and property settlement has been finalised.
A Family Provision Claim is a method of disputing a will in court. You are eligible to submit a Family Provision Claim if you are related to the deceased or had a close relationship with them and have a demonstrated financial need that the deceased had a moral obligation to meet.
Lawyers or solicitors charge between $300 to $500 per hour for wills, and it depends on the complexity of your estate as to how much the total cost is with a solicitor.
'Contesting' usually relates to bringing a claim against the estate for provision, whereas 'challenging' is disputing the validity of the Will itself. They are subtle differences in the words used, but very different types of causes of action.
Omitted Children: Rights and Intestate Share of Estate
As an omitted child, you are entitled to your intestate share of the estate regardless of what the Will states. There are a few exceptions, however, such as a Will that references an upcoming birth of a child, but states the child is specifically disinherited.
It is possible you can leave your adult child out of your Will if your adult child is able to adequately provide for themselves regarding their maintenance, education and advancement in life including retirement. A Will is not automatically invalid or inappropriate due to leaving a child out.
In general, a parent has no obligation to leave property to their children in their will. They can choose to disinherit them for any reason or no reason at all. However, there are some exceptions and limitations to this rule. One exception is if your mother did not leave a will at all.
A grandchild can contest the will of their grandparent in almost every jurisdiction of Australia. However, most states and territories that designate a grandchild as an eligible claimant also require that the grandchild was dependent on the testator for some form of maintenance.