MMS Briefs: Who can challenge a Will?

Eligible Persons

If you talk to someone at the pub or water cooler, you can be mistaken for thinking that Wills are worthless as “anyone can contest a Will.”

However, the law in NSW has strict categories in relation to who is eligible to challenge a Will. The categories are:

  • Spouses (wives, husbands and de factos;

  • Children (biological, adopted or IVF – but not stepchildren)

  • Former wives or husbands;

  • Someone who was financially dependent on the deceased at some time, and who was either: A grandchild; or a member of the deceased’s household at some time in their life.

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

De facto relationships are determined by looking at the totality of the relationship, but must involve living together as a couple, and usually a sexual relationship, financial interdependence or support, mutual commitment to life and public acknowledgement of the relationship.

Former spouses have to show that there are factors warranting the application – meaning that there needs to be some special circumstances whereby you would expect the deceased to have provided for them. This is very uncommon in practice.

Likewise, dependent grandchildren must show that they were something more akin to a child of the deceased. This could involve direct responsibility for their support or welfare, and continuing or substantial support financially.

Dependents in category d)ii) are someone who has lived with the person and been financially dependent on the deceased – not necessarily at the same time. Again, there must be factors warranting the application.

A “close personal relationship” means sharing accommodation, caring for one another (but not paid for it), domestic support and personal care.

“Dependent”

Buying someone a pair of socks each Christmas would not amount to dependency.

The Courts typically prefer regular, ongoing financial support over a period of months to be satisfied of financial dependency. Emotional support and pastoral care do not count when it comes to determining dependency.

“Adequate”

If the person fits any 1 or more of the categories, they still must prove that they were not adequately provided for in the Will, in terms of their proper maintenance, education and advancement in life.

There are a whole range of factors to determine whether provision is adequate – including the size of the estate, the nature and duration of the relationship, the needs (financial and non-financial i.e medical) of the applicant, who the applicant has to support and the age of the applicant.

Another misconception you could have heard doing the rounds is that if someone receives a nominal amount – be it $1 or $20,000 then they can’t contest the Will. This isn’t true. The same eligibility and adequate provision hurdles apply.

In some cases $20,000 could be adequate, but it always depends on the individual circumstances of the estate and applicant.

Good advice

The best way to avoid your estate being squandered on legal costs or to find out whether you have a claim worth being pursued (or defended) is to seek proper advice from an expert in the area.

There are a range of measures that can be implemented to minimise the risk of litigation from an estate planning perspective, and these should be tailored to your individual needs. All Wills should be drafted after you have received proper advice on who is eligible to make a claim, and the litigation risks generally.

From a litigation perspective, you do not want to waste months of your life and destroy family relationships for the sake of a poor claim or defence. Getting advice early (12-month time limit applies from death) from a firm with expertise can save you from unnecessary stress and financial strain.

Contact

Richard Morris, a principal of Moin Morris Schaefer, has extensive experience in assisting clients with estate planning and family provision litigation – both defending estates and on behalf of applicants.

For a free Will and Estate Planning review, contact Richard to arrange an appointment.

If you are an executor of an estate facing a claim, or feel that you have been not provided for in a will, then contact Richard to discuss your options with an expert.

Richard’s details are:

rmorris@moin.com.au

02 6772 4899

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