Did you know that the incidence of Will challenges has risen by around 25% in the past decade? Statistics tell us that approximately 10% of all Australian Wills face legal challenges, but the true number is likely to be much higher because this figure only records challenges which reach a certain legal stage. This would mean we would discuss the potential for Will challenge in around 25% of estate planning meetings.

Given the massive amount of wealth to be transferred intergenerationally in the next few decades (an estimated $5.4 trillion dollars by 2025!!), we can expect that Will challenges are only going to rise.

This is the first in a series of articles about Will challenges. In this article, we will explore who can make a challenge, and why.

Who can challenge a Will?

First, it is important to understand that Will challenge laws vary between states. In this article we are looking at challenges in Victoria. These arise when the deceased’s ‘usual domicile’ was in Victoria at the time of death.

In Victoria, someone who wants to challenge a Will must be one of:

• A spouse or domestic partner of the deceased;
• A child (including adopted) or step-child of the deceased;
• A registered caring partner or grandchild of the deceased, or a member of the deceased’s household, provided they were financially dependent upon the deceased; or
• A former spouse or domestic partner of the deceased, in certain circumstances.

If a person falls outside of these categories, they are not considered eligible to make a claim.

When can a Will be challenged?

Generally, an eligible person has 6 months from the date Probate is granted to challenge a Will. Challenging outside of this timeframe is very difficult.

On what grounds can someone challenge a Will?

As well as being an eligible person, anyone challenging a Will must show:

• The deceased had a moral duty to provide for them; and
• The Will does not make adequate provision for them.

These sound pretty straightforward, but there is a lot that Courts take into account when looking at these two points. It is helpful at this point to understand the reason why the legal system allows Will challenges at all. It is not uncommon for clients to be frustrated their Wills can be challenged!

Courts do take a Will seriously and respect the wishes of the Will maker. In legal terms this is called “freedom of testation” and it is important. However, they are also trying to balance social goals, recognising that the deceased can leave people in genuine need behind, and that as a society there is an obligation to take account of that in a Will.

So when a Court is looking at the two points above, they are going to consider things like:

• Why the deceased made their Will that way
• All of the circumstances of the person challenging, such as any disabilities and their ability to provide for themselves
• Whether the person challenging was dependent on the deceased
• How the other people named in the Will are going to be affected

This is a complex process where a deep dive is taken into all the relevant circumstances.

 

In the next article we will look at some common Will challenge scenarios, being adult children where their parent has re-married, and the estranged ‘black-sheep’ child.