DISPUTING A WILL Do you think you have been treated unfairly in a Will? Do I have the right to challenge a Will? Am I eligible to challenge a Will? What are the chances of being successful in challenging a Will? Can I stop someone challenging my Will? If you have any concerns about these issues please read the attached information which discusses Disputing a Will. 110-114 CROWN STREET, WOLLONGONG PH: (02) 4228 8288 FAX: (02) 4229 2164 66 COLLINS STREET, KIAMA PO BOX 95 KIAMA 2533 DX 5188 WOLLONGONG PH: (02) 4232 1188 FAX: (02) 4232 3419 49A PRINCES HIGHWAY, DAPTO PH: (02) 4261 5738 FAX: (02) 4260 8142 88 KINGHORN STREET, NOWRA PO BOX 162 NOWRA 2541 DX 5301 NOWRA PH: (02) 4428 6000 FAX: (02) 4421 8272 387 BONG BONG STREET, BOWRAL PO BOX 438 BOWRAL 2576 DX 4969 BOWRAL PH: (02) 4862 1411 FAX: (02) 4862 1947 E-MAIL: rmb@rmblawyers.com.au WEB: www.rmblawyers.com.au
What does it mean to dispute a Will? DISPUTING A WILL At law, there is a difference between disputing a Will and claiming on an estate. To dispute a Will is to challenge the Will as being valid. This may be on the basis of it being a forgery, the maker of the Will not knowing what they were doing (the legal term for which is lacking testamentary capacity ) or the maker of the Will being under undue influence when they made the Will. Special rules apply to each of these different situations which this Fact Sheet does not seek to address. For further information in respect to disputing a Will, please contact one of the lawyers in our Inheritance Planning Division. To Claim on an Estate is to apply to the Court for an order that you be provided for out of the Will of the deceased person or if you have been given something under the will to apply for an order that you be given more. What does it mean to claim on an estate for some or further provision? Chapter 3 of the Succession Act, 2006 provides that eligible persons may apply to the Court for a Family Provision order. A Family Provision order is an order of the Court in relation to the estate of a deceased person to provide from that estate for the maintenance, education or advancement in life of an eligible person. It is not necessary that an eligible person has been completely left out of a Will before they can make application for an order. Nor does it mean that, if they have been left something in the Will, they cannot make an application for further provision out of the estate. It is important to be aware that, in making an application for further provision, the application must be for maintenance, education or advancement in life. An application cannot be made to the Court for a specific asset, eg a car or a particular bank account. Who is eligible to make a claim for a Family Provision order? The Succession Act defines those who are eligible to make a claim for a Family Provision order. If a person does not fit the definition of an eligible person, then that is the end of the matter. Eligible persons are: a person who was the wife or husband of the deceased at the time of the deceased s death a person with whom the deceased was living in a defacto relationship at the time of the deceased s death
a child of the deceased person a former wife or husband of the deceased person a person: (i) (ii) who was, at any particular time, wholly or partly dependent on the deceased person; and who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member a person with whom the deceased person was living in a close personal relationship at the time of the deceased s death What does the Succession Act mean by a defacto relationship? The Succession Act incorporates the definition of a defacto relationship as set out in Section 21C of the Interpretation Act, 1987. A person is the defacto partner of someone (whether of the same sex or a different sex) if that person is in a registered relationship with the other person. Defacto relationships can be registered pursuant to the Relationships Register Act, 2010. Alternatively, a person is the defacto partner of another person if they are in a defacto relationship. What is a defacto relationship? The Act states that a defacto relationship exists if a couple have a relationship as a couple living together and they are not married to one another or related by family. How is it decided if two persons have a relationship as a couple? The Act sets out a number of criteria which are to be taken into account by the Court. No one criteria on its own will answer the question but it is a matter of considering the whole of the relationship. The listed criteria are:- the duration of the relationship the nature and extent of the common residence whether a sexual relationship exists the degree of financial dependence or inter-dependence, and any arrangements for financial support, between the couple the ownership, use and acquisition of property the degree of mutual commitment to a shared life the care and support of children the performance of household duties the reputation and public aspects of the relationship
An eligible person can be someone with whom the deceased was living in a close personal relationship at the time of the deceased s death. What is a close personal relationship? A close personal relationship is one that is other than a marriage or a defacto relationship. It must be between two adult persons, whether or not related by family. Those persons must be living together. At least one of them must provide the other with domestic support and personal care. Thus, for example, someone who is living in the household with the deceased and who provided the deceased with domestic support and personal care, may be eligible. The Act specifically states that such a person is not in a close personal relationship if they are paid for providing the domestic support and personal care or if they provide the same on behalf of someone else or an organisation. It is important to note that, in the definition, not only domestic support (which the Court has interpreted to mean such things as cleaning and cooking and transport) is to be provided but also personal care. Personal care has been interpreted to mean personal support of the person such as assistance with dressing and showering. In other words, it must be personal care of the person, as opposed to general domestic duties. The two things must go together. An eligible person includes a child of the deceased. Are there any special rules in respect to a child? A child, as defined in the Act, includes (if the deceased person was in a defacto relationship or a close personal relationship at the time of death) the following: a child born as a result of sexual relationships between the parties to the defacto relationship or the close personal relationship a child adopted by both parties where there is a defacto relationship between a man and a woman, a child of the woman of whom the man is the father or presumed to be the father by virtue of the Status of Children Act, 1996 where there is a defacto relationship between two women, a child of whom both of those women are presumed to be parents because of the Status of Children Act, 1996 a child of whose long term welfare both parties had parental responsibility within the meaning of the Children and Young Persons (Care and Protection) Act 1998. I am an eligible person. Does that mean that my claim for provision of maintenance, education or advancement in life will therefore be successful? The short answer to this question is no. Just because a person is eligible, it does not mean that their claim will be successful. The Succession Act provides that the Court can make a Family Provision order only if, at the time it is considering the application, the Court considers that the Will does not make adequate provision for the property maintenance, education or advancement in life of the eligible person. If there is no Will, the Court will then consider whether or not the rules of intestacy mean that there has not been adequate provision for the proper maintenance, education or advancement in life of the eligible person.
Section 59(2) of the Succession Act then provides that the Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person. It is thus fully at the discretion of the Court as to whether or not it makes an order and as to whether or not it considers that inadequate provision has been made for the person making the claim. There is no formula. What does the Court consider when deciding whether or not to make an Order? The Court will look at the size of the estate, the financial needs of the person making the claim, the relationship of the person making the claim with the deceased and the financial position of those who inherit from the deceased. When making a claim the claimant must disclose to the Court full details of their financial circumstances, including all their assets and liabilities, income and expenses. Such disclosure extends to the husband or wife (including defacto partners) of the person making the claim. The person making the claim must be able to show that they have a need. Do I have to make a claim within any particular time? A claim for a Family Provision order must be commenced within twelve months of the date of death of the deceased person. How is the claim made? A claim is commenced by the filing of a Summons in Court. The Supreme Court has extensive experience in dealing with claims on estates and, whilst claims in smaller estates can be brought before the District Court, the great majority of cases are all brought in the Supreme Court because of the experience it has with these types of claims. What happens after the Summons is filed? After the Summons is filed it must be served on the Executor or Administrator of the Estate. At the time the Summons is filed, the Court will allocate a date, usually within four to six weeks after the filing of the Summons, when it will come before a Registrar of the Court. The purpose of it then coming before the Registrar is for the purpose of a timetable being set down to enable the parties to prepare their evidence. That evidence is in the form of Affidavits (which are sworn statements) setting out all relevant particulars to each party s case. I am making my Will. I don t want to include someone who is defined as an eligible person. Can I leave them a small amount to prevent them making a claim? The answer to this question is no. As stated above, the issue when a claim is made is whether or not the provision made for an eligible person is adequate. What is adequate is purely at the discretion of the Court and is different in every circumstance. What can I do to prevent a claim? There is nothing you can do to prevent a claim being made on your estate, other than dying without any assets.
If you are not providing in your Will for someone who is otherwise an eligible person you should, at least, have a comprehensive Statutory Declaration prepared which sets out the reasons why the person is not included. Whilst such a statement may not prevent a claim being successful, it is the only means by which you can put before the Court your reasons for making the Will the way you have made it. The Court will then take into account what you have stated. Can I provide in my Will that, if someone makes a claim, they will not be entitled to receive anything? Again, the short answer to this question is no. As stated above, it is purely a matter for the Court. If you have any queries regarding this material please ring any of our offices below: 110-114 CROWN STREET, WOLLONGONG PH: (02) 4228 8288 FAX: (02) 4229 2164 66 COLLINS STREET, KIAMA PO BOX 95 KIAMA 2533 DX 5188 WOLLONGONG PH: (02) 4232 1188 FAX: (02) 4232 3419 49A PRINCES HIGHWAY, DAPTO PH: (02) 4261 5738 FAX: (02) 4260 8142 88 KINGHORN STREET, NOWRA PO BOX 162 NOWRA 2541 DX 5301 NOWRA PH: (02) 4428 6000 FAX: (02) 4421 8272 387 BONG BONG STREET, BOWRAL PO BOX 438 BOWRAL 2576 DX 4969 BOWRAL PH: (02) 4862 1411 FAX: (02) 4862 1947 E-MAIL: rmb@rmblawyers.com.au WEB: www.rmblawyers.com.au This material is provided by RMB Lawyers to our clients for their information on a complimentary basis. It represents a brief summary of the law applicable to Disputing a Will as at May 2011 and should not be relied upon as a definite or complete statement of the law.