While you can leave your assets to anyone you wish in the event of your death, it is important to leave enough assets to the people who depend on you so they can survive after you are gone. If you don’t, they may contest your will to get a bigger share of your assets after your death.
Who can contest your will?
The following persons are eligible to contest a will:
- the wife or husband of the deceased person at time of death
- a person with whom the deceased person was living in a de facto relationship at the time of their death (including same sex partners)
- a child of the deceased person
- a former wife or husband of the deceased person
- a person who was dependent on the deceased person and a member of the same household as the deceased person (at any particular time)
- a grandchild who was dependent on the deceased person (at any particular time)
- a person with whom the deceased person was living in a close personal relationship at the deceased person’s death
Relevant circumstances at the date of the hearing and community standards are also considered by the Court.
Contesting the validity of a will
The Court will determine the validity of a will by answering the following questions:
- Is it the last will made by the deceased?
- Was it executed according to the formal requirements of the Act or does it meet the requirements of the Act?
- Did the will-maker (the “testator”) have the testamentary capacity to make the will?
- Was the will altered after it was originally signed?
- Was there any undue influence involved during the creation of the will?
An application to contest a will must be made within 12 months of the testator’s death. In certain circumstances, the eligible person contesting the will can ask the court to have the period extended.
What is undue influence?
Undue Influence is where the testator has been coerced when creating their Will. If this occurs, then the will is no longer made freely and voluntarily and can be set aside by the Court. Vulnerable people are most likely to be subject to undue influence. Undue influence often occurs where a person has assisted the testator to create their will and stands to benefit from it. In that instance the beneficiary may have to prove to the court that there was no trickery, coercion or fear involved in the making of the will. Flattery and persuasion is acceptable.
Proving undue influence is difficult unless:
- You can show that the resulting will was contrary to the testator’s real intentions
- There were witnesses present when undue influence occurred
- You can prove undue influence occurred with full details and supporting evidence.
An increasing number of people have complicated family structures. As the family structure increases in complexity, so does the likelihood of the will being contested.
To address any possible challenges, you should seek advice from an estate planning specialist.