Can your will be challenged?

We often read sensational stories about wills being challenged. Sometimes the reported outcomes appear outrageous. Legal expert Rod Cunich explains the process of challenging a will.

I’m often asked: ‘Why bother doing a will when anyone can challenge it and undo your wishes?’

The starting point is that the court will uphold the wishes of a deceased person unless there is good reason to interfere. The underlying test a court applies is whether the will reflects (in all the circumstances) what the public might expect the deceased to have fairly done given the nature of his/her estate and the circumstances of each of the beneficiaries.

Eligible claimants
Certain people have a statutory right to challenge a will, for example a current or past spouse or de facto and children of the deceased. But having a right to challenge a will doesn’t mean the challenger will be successful. A challenger has to satisfy the court that the deceased made ‘inadequate provision’ for them; that there are sufficient assets to satisfy a claim and that others are not unfairly treated as a result of any decision.

It is not uncommon for a court to find a person was not adequately provided for, but then find that it’s unfair to reduce another beneficiary’s inheritance to satisfy the claim.

So what sort of things does a court look at?

A court must carry out an extensive investigation in order to determine whether the deceased made adequate provision for the challenger, but it doesn’t end there. The court must also look at the size of the estate and balance the needs of the other beneficiaries before an order is made in favour of a claimant.

A court will examine issues such as the following:

(a) any family or other relationship between the challenger and the deceased including the nature and duration of the relationship

(b) the nature and extent of any obligations or responsibilities owed by the deceased to the claimant and the other beneficiaries

(c) the nature and extent of the deceased’s estate (assets and liabilities)

(d) the financial resources and financial needs of the challenger and other beneficiaries

(e) if the claimant is cohabiting with another person – the financial circumstances of that person

(f) any physical, intellectual or mental disability of the claimant and other beneficiaries

(g) the age of the claimant when the application is being considered,

(h) any contribution (whether financial or otherwise) by the claimant to the acquisition, conservation and improvement of the estate of the deceased or to the welfare of the deceased or the deceased’s family

(i) any provision made for the claimant by the deceased during the deceased’s lifetime or in their will

(j) evidence of the testamentary intentions of the deceased

(k) whether the claimant was being maintained, wholly or partly, by the deceased before their death

 (l) whether any other person is liable to support the claimant

(m) the character and conduct of the claimant

(n) any other matter the court considers relevant.

So you can see that a court not only examines the claimant’s rights but continuously balances those rights against the competing rights of the other beneficiaries.

A court will only interfere with the will if, after considering all of these matters, it is satisfied that an injustice has been done.

Other claimants
It’s not only eligible claimants who can challenge a will. Others can challenge a will if they can overcome a threshold test, namely that they were dependent of the deceased in some way that qualifies they to make a claim. Simply put, if a deceased person financially supported a friend or provided them housing because they were down on their luck, then the person might be able to satisfy a court that the deceased should have made some provision for them in their will.

Is it worth having a will?
Most definitely, yes.  It is the only way you can nominate who is to benefit from your estate.  You can’t prevent challenges, but the risk of a challenge is no reason to avoid preparing a will. Most wills are not challenged. Even when a will is challenged the courts do a good job of ensuring claimants are only successful if they are deserving.

How do you minimise the risk of a challenge?
Follow these three tips:

  1. Treat all potential beneficiaries fairly.
  2. If you anticipate a challenge, prepare an affidavit setting out details of the reasons why you have left someone out or given them a small inheritance.

Lastly, but most critically, discuss your will and its contents with beneficiaries. If there is any dissatisfaction, address it in conversation whilst you are alive. Do not leave it to the beneficiaries to fight it out. Often, it’s the ‘surprise’ of finding what is in (or out) of the will that spurns litigation.

The information in this article should be considered general in nature and legal advice should be sought. This information has been provided by Rod Cunich, author of Understanding wills and estate planning.  Rod can be contacted via his site Rodcunichlawyer.com, where you can learn much more, and also buy a copy of his book.

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