Challenging a Will – do you stand a chance?

We often hear stories of ‘I heard….’ when it comes to Wills and who’ll get what when someone dies. Those stories are rarely right, which is why it’s important you get expert advice when doing your Will or if you’re thinking of challenging someone else’s Will.

It’s never ‘just a Will’ (if someone’s preparing your Will and they say that, run…). All the circumstances need to be considered. Here’s a rundown of what you should know.

Where does it start?

We’ve all been there – you’re sitting at the dinner table and up pops the topic of Wills – when someone says something like: ‘When Aunt Jenny falls off the perch, if she hasn’t got me in her Will, I’m going to contest it to see how much I can get. I’ve nothing to lose; I may as well have a go’.

Many people assume when they’re left out of a Will by a family member, or even a close friend, they are by some ‘natural right’ entitled to contest that Will ‘for the sake of it’. To challenge a Will, you need to make a ‘family provision claim’. Whilst some people consider deceased estates as an easy alternate source of money, convincing the court you should get something isn’t always so easy.

Who’s eligible to make a claim?

In the ACT, the following people can challenge a Will:

• a partner of the deceased;
• a child of the deceased; or
• a domestic partner, step-child, grandchild or parent (if they meet certain tests) of the deceased.

If you try to get a share of a deceased person’s assets by claiming you were a domestic partner of theirs, your personal relationship with the deceased will be in the spotlight, as will the personal and financial commitment and support you gave each other.

On the other hand, if you’re considering what will happen to your assets when you die and you’ve got concerns about that ‘boarder’ who’s becoming more supportive of you day by day, or that your ex may try and use your former domestic relationship to go for another ‘slice of the pie’, then you need to make sure your Will is watertight so the wrong people don’t end up with your life’s wealth as a ‘domestic partner’ that was intended for others.

If you’re in NSW, you should get our advice sooner rather than later as your ex-wife/husband is automatically eligible to challenge your Will.

What does the court consider?

If someone’s eligible to make a family provision claim, the court looks at various elements of the deceased’s and claimant’s life to decide if the claimant should get anything, including:

• the nature and duration of the relationship between the deceased and claimant;
• the respective incomes and financial positions of the deceased (before death) and claimant;
• how healthy (physically and mentally) the deceased (before death) and claimant is; and
• who else might want a slice of the pie.

Shouldn’t I just ‘have a go’ anyway?

People tend to assume that ‘having a go’ at disputing a Will won’t cost them a cent of their own money. However, this isn’t always the case. The court has full discretion as to how the legal costs in a family provision claim should be paid.

Whilst a successful claimant’s costs may be paid from an estate, it’s rarely 100% of the costs paid by the claimant. It’s a bit like the Medicare gap – the amount ‘approved’ for costs is rarely as much as the actual cost.

Before challenging a Will, it’s smart to get expert legal advice about your chances of success and how much it’s going to cost you before diving in. If you hear something similar to: ‘don’t worry, have a go, the estate will automatically cover all your costs’, run… Proper advice will stop any nasty ‘cost surprises’ at the end of the claim.

If I leave someone $1,000, they can’t make a claim can they?

It’s shocking to think how wide-spread this little piece of ‘backyard lawyering’ advice has spread – if you leave a small sum of money to someone eligible, they can’t make a claim, right? Wrong!

Leaving a lowly amount, without explanation, to someone who would’ve otherwise been eligible to make a family provision claim may entice someone to make a claim they otherwise wouldn’t have. A carefully drafted Will, that includes consideration of potential claims, can reduce the chances of that Will being tied up in litigation in a family provision claim.

Another myth we often hear is ‘you must divide your estate equally between your children and, if you don’t, the court will just automatically adjust your Will so each gets the same amount’, right? Wrong!

The court can’t make an order just because it’s ‘fair that each child receives the same’. In fact, there’s no law that says parents have to be fair to their children and the court may well find that an unequal distribution between children is reasonable in the circumstances. If “little brother Jimmy” doesn’t get proper advice before launching an attack on his parent’s Will, he might well find himself paying money into the deceased’s estate (paying the executor’s costs), rather than the other way around.

But I don’t think it’s fair I’ve been left out of a Will!

The court doesn’t make an order based on what’s ‘fair’. As discussed above, a wide variety of factors are considered. Just because someone’s eligible to challenge a Will, doesn’t mean they’ll end up with anything.

If you’re feeling aggrieved at being left out of a Will, don’t be lead down the garden path on cursory advice that you should’ve been in the Will, you can challenge the Will, you’ll get something out of the deceased’s estate and it won’t cost you a thing for your effort. Challenging a Will is emotional, time-consuming and can be costly if you fail, so get expert advice before you do anything.

For more information contact the Estate Litigation Team at Meyer Vandenberg Lawyers:

Contact Tanya Herbertson or Michelle Gold on (02) 6279 4444.

Michelle Gold is the Senior Associate in Wills, Estate Planning and Estate Litigation.

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