Left out of a Will? Here’s Some Things You Can Do

At its most basic form, a Will is a legal document that advises family and friends what should happen to someone’s property after they die. If you feel you have been unfairly left out of a Will, you can challenge or contest it. Read on to see what steps you can take to do this.

In NSW, the basic rules of a Will are still based on old English Law. They haven’t changed all that much in the last 100 years! The law requires the Will must be in writing, signed at the end by the Testator (the person making the Will) and signed and witnessed by two adults. Each witness must physically see the others sign the Will. After the death of the Testator, the person nominated as the Executor in the will applies to the Supreme Court for a Grant of Probate of the Will. In making a Grant of Probate, the Court determines that the Will is formally valid. It also gives the Executor the authority to administer the estate, pay the debts and ensure that the legal title to the Testator’s assets passes to the beneficiaries named in the Will.

In recent times, while the basic rules of making a Will still applies, the law has allowed some flexibility in granting Probate. If it can be proved to the satisfaction of the Court that a document presented for Probate contains the deceased’s last wishes, even though the formal requirements have not been satisfied, they will still validate it. An example is where a document is in the handwriting of the deceased and signed by him or her, but has not witnessed by two witnesses. If the Court is satisfied there is no doubt that the deceased intended the document to operate as his or her last Will, they will grant Probate.

The Court exercises great caution in granting Probate and it is not easy to challenge a Grant of Probate of a Will based on the argument that there is a defect in the making of the original one. If you choose to contest a Will, you will need to keep in mind two important things: testamentary capacity and the duty to provide.

Testamentary Capacity

The law requires that at the time of making a Will, the Testator had ‘testamentary capacity’. This means that when the Testator made their Will, they understood the purpose of it and intended it to operate as a Will when they signed it.

There are many cases where the Court has refused to grant Probate of a document presented as a Will because it found that the Testator lacked the proper mental capacity when they made it. This is a very common reason for challenging a Will, particularly when the deceased was elderly, in poor health or was deceived in some way. The Court requires evidence to establish that the deceased person understood the true nature and meaning of the document at the time they signed it. This evidence is usually gained through interviews with the deceased’s doctor, their Solicitor or person who created the document and also from the witnesses and people who knew the deceased well. If the Court decides the deceased did not have the mental capacity to understand they were making a Will, then it will not be admitted to Probate and is invalid. This then means the deceased is declared intestate (meaning they died without having made a Will) and an earlier will can then be presented for Probate.

The Duty to Provide

Australia-wide, any person who feels they have unfairly left out of a Will or not adequately provided for in one, can ask the Court to allocate a share of the deceased’s property to them. This right is also available where there is no Will but the person must prove the deceased had a duty to provide or look after them while they were alive.

Applications of this nature can only be made by ‘eligible persons’ and the definition of that phrase varies from state to state. Apart from close blood relations, it includes people who were dependent on the deceased at some stage of their life or the deceased had a duty to provide care for them.

If you fall into this category, you can make a claim for provision. Strictly speaking, making a claim for provision is not a contest or challenge to the Will. But if you are successful with your claim, the Court will amend the Will to include a gift that it considers to be fair.

Making a claim for provision is relatively easy and many are brought before the Courts. The results vary according to the facts of the individual case, so you should always present the best evidence you have to support your claim. The Court will weigh up the merits of each person claiming to be a beneficiary to the Will and take into account factors such as:

  • the value of the estate
  • the terms of the Will
  • the relative needs of each of the parties
  • the age and state of health of each of the parties
  • the way a claimant has treated the deceased during their lifetime
  • whether a claimant assisted the deceased with daily living or lived with the deceased, particularly during illness or old age
  • whether the claimant provided financial support to the deceased
  • the closeness of the relationship of a claimant with the deceased
  • the way in which a claimant was dependent on the deceased
  • the duties of care the deceased owed to each claimant

The Court – which is only made up of a single Judge – exercises a wide discretion when deciding a claim so the outcome is not easy to predict. A high number of cases are settled through private negotiations because of this lack of certainty of outcome if the matter is left to only the Judge.

How Much Does it Cost to Contest a Will?

The short answer to this question is – a lot! Cases in the Probate list can involve multiple parties. The Executor must participate as it is their duty to uphold the Will as it was originally made. The beneficiaries are entitled to take part, and in claims for provision there may be more than one claimant. Each may be separately represented by a Solicitor and/or a Barrister. If mediation (which is held before the court hearing) fails to bring about an agreement, then a defended hearing may run for two or three (or more) days. It is not uncommon for the combined legal costs to exceed the value of the Estate being contested!

There is also an emotional cost. Being involved in court proceedings is very stressful. You will also likely be very upset by the arguing involved with family members and the almost inevitable breakdown of these close relationships.

How Do I Contest a Will?

You will have to do so through the Courts, but you should also seek the assistance of a lawyer. While this article provides some vital information, each case depends on its own facts. Getting sound and practical advice, including a realistic assessment of the likely outcome, is essential.

Keep in mind the information in this article is no substitute for legal advice. At Know the Law, we have a good network of lawyers who can help you challenge or contest a will. Please contact us if you feel we can help.

More helpful articles and resources

1. What you need to know about making a Will that protects your family

2. Free Will kit

3. General information about wills law

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