In a previous article, we explained how estates are inherited when the deceased dies intestate (without a will). Another common situation is where the deceased left a will. In that case, the heirs to the estate are relatively clear — they are the beneficiaries of the will. However, beneficiaries may still face some difficulties.

Today’s topic is: where there is a will and you are a beneficiary, but another party challenges the contents of the will, what does Australian law say?

Family Provision Claim

Will disputes are a common topic in succession law. For example, where a family member of the deceased received only a small share of the estate or was left out entirely, that family member may apply to the court to challenge the will. This type of application is known as a ‘Family Provision Claim’.

Those who may bring a ‘Family Provision Claim’ before the court include:

1. The wife or husband of the deceased

2. The de facto partner of the deceased

3. A former wife or former husband of the deceased

4. A person who, for a period, was dependent on the deceased for support; a grandchild of the deceased; or a person who lived as a member of the deceased’s household for a period

5. A person who, at the time of the deceased’s death, lived with the deceased and was in a close personal relationship with them.

Time Limit

Under New South Wales law, a person who is unhappy with a will must file a claim within 12 months of the testator’s death. In practice, however, the court has heard cases filed several years beyond this limit. The court’s test is whether there is sufficient cause for the late filing — for example, where the family member was overseas within the 12 months following the testator’s death, or was not notified by the executor and was unaware of the testator’s death.

Facing a Will Dispute — What a Beneficiary Needs to Do…

1. Attend Mediation

Mediation is the process in which both parties, with the assistance of a mediator, work together to negotiate a resolution. Compared with litigation, resolving a dispute through mediation has the following advantages:

1. Saves time and money

2. More flexible outcomes

3. Informal (compared with litigation), with less pressure on both parties

In New South Wales, the parties to a will dispute must attend mediation first. Only if mediation fails will the court hear the matter. Where the challenging party has the stronger case, active participation in mediation — and resolving the matter through mediation — may well be a sensible option for the beneficiary.

2. If Mediation Fails — Proceed to Litigation

In hearing this type of proceeding, the court will consider whether the challenger’s maintenance, education and advancement in life can be adequately provided for.

The court will consider the following factors:

1. The age, financial circumstances, and any disability (physical or mental) of persons connected with the will

2. The challenger’s contribution to the deceased’s estate

3. The size of the deceased’s estate

4. The character and conduct of the challenger

In Closing

It is not uncommon, as a will beneficiary, to find yourself facing a challenge to the will from another party. If a challenge is brought before the court, both parties will need to attend mediation or litigation to resolve the matter properly within the legal framework.