You would probably be surprised to learn how often we are asked about whether a particular family member can challenge a Will. In my experience, when clients raise concerns about their family “black sheep” and whether they can challenge, they feel somewhat embarrassed and usually like their family is different.
But the reality is that concern about someone challenging a Will is actually very common, and is a question I answer every week. And you might be surprised by the answers…
So who can challenge a Will?
First, it is important to understand the Will challenge laws differ in each state of Australia, and this article only covers Victorian Will challenges. If you reside interstate or have significant assets interstate then things will look different.
In Victoria, to challenge a Will you must fall into one of the following categories:
- A spouse or domestic partner of the deceased
- A child or step-child of the deceased
- A registered caring partner of the deceased
- A grandchild of the deceased
- A spouse or partner of a child of the deceased if that child had also passed away within one year of the deceased’s death.
- A member of the deceased’s household (or someone who had been a member of the deceased’s household in the past and would have likely been again in the near future)
- A former spouse or partner if property matters have not been formally settled
These categories significantly limit potential challenges on your Will, particularly from errant siblings which is a concern often expressed.
Someone in the above categories can challenge your Will if you have left them out entirely, or if they believe that have not received a sufficient amount in your Wil. Their challenge is essentially based on their needs not being met by your Will, where it would have been reasonable for you to provide for them.
What can you do to avoid someone challenging your Will?
Unfortunately, there is nothing we can do to completely prevent a Will challenge. However, there are two important strategies we can put in place:
- As much as possible, we can reduce the assets which fall under your Will. Only assets which are passed by your Will are open to challenge in Victoria. If we can make sure your superannuation by-passes your Will, and look at putting other assets into joint names so they pass automatically to the survivor outside of your Will, we can significantly reduce the impact of a challenge. However, there is usually a limit on how much we can do in this respect.
- Where you are concerned about challenge, it is very important that you write a letter to keep with your Will that sets out the reasons why you have decided on your particular distribution. If you do not do this and someone challenges, your side of the story is essentially lost. A detailed letter acts as your voice, and such documents are given recognition by the Courts. This is a separate document to your Will and only comes to light if needed.
Why are people allowed to challenge a Will?
Most people are upset by the fact that their final wishes can be overruled and can wonder what the point of a Will is.
The reasoning behind why Wills can be challenged at all is complex, but comes down to the Courts trying to protect vulnerable members of society from unfair treatment.
Having said that, the Courts do give a great deal of weight to what the Will says and are reluctant to change it without good reason. The Courts call this “freedom of testation” (the ability to make your Will how you wish to), and it is a very important consideration in Will challenge cases. You are absolutely better off having a Will in place than not!
No two Will challenges, like families, are the same and you should speak to us for advice about your situation. We can also help you if you feel you have been unfairly left out of someone’s Will, or if someone is challenging a Will you are involved in.
Jessica Amberley, Director