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  • Writer's pictureJusteen Dormer

The G Word - Why You Don't Need to Feel Guilty About Contesting a Will

The passing of a loved one is an emotional time. Concerns about inheritance can appear trivial and difficult to talk about while you are grieving. We often hear phrases such as “I don’t want to look as though I only care about money”, and “I don’t want to be greedy” from clients calling for advice in relation to a will which has not sufficiently provided for their needs or they have been left out of entirely. This article will explore the types of challenges that can be brought against a will, and by doing so will explain why it is something you should not feel at all guilty about pursuing.

Challenges to the Validity of a Will

The first category of challenges to a will are those which dispute the validity of the will itself. Some common challenges to a will’s validity are:

The G Word - Why You Don't Need to Feel Guilty About Contesting a Will
  • there was fraud involved in the making of the will;

  • the testator (will-maker) lacked the capacity to make the will;

  • the testator did not know and approve of the contents of the will;

  • there was undue influence on the testator; and

  • the will is a forgery.

Challenges to the validity of a will are all based on a contention that the will does not reflect the true testamentary intentions of the deceased. Whether those intentions were sabotaged by coercion, fraud or forgery, or undermined by a lack of capacity, what is clear is that the will document does not embody the deceased’s final wishes. Accordingly, a challenge to the validity of a will should not be something which you are guilty about bringing, as in reality the challenger is simply attempting to prevent a third party from substituting their own wishes for the wishes of the deceased.

Family Provision Claims

The second category of challenges to a will are those which argue that whilst the will is valid, the applicant has not been adequately provided for under it. Such applications are commonly known as family provision applications. A brief examination of the history of and rationale behind such applications will reveal how these applications are also not something that an applicant should feel guilty about.

Although every Australian state has slightly differently worded legislation, broadly, the sections relating to family provision empower the court, on the application of an entitled person, to make an order that provision be made out of an estate for the applicant’s maintenance. In order to make such an order, the court must be satisfied first that adequate provision has not been made out of the estate, and second that it should or ought to be made. Whilst the first of these criteria is a relatively straightforward and objective question, the second is grounded in ambiguous and morally loaded words like ‘should’ which invite the court’s discretion. The court must place themselves in the position of the testator and consider what they ought to have done in the circumstances of the case.

The court has no power to make a new will for the testator simply because it may seem like the fair thing to do, rather its power is limited to adjudicating what the testator ought to have done having regard to all the circumstances. Although the words themselves have been removed from most of the succession legislation in Australian jurisdictions, the question of what a testator ought to do is one that derives from the notion inherited from English law that a person has a ‘moral duty’ to their descendants. Correspondingly, the categories of persons who are eligible to make family provision applications are generally restricted to people who have a familial relationship with or who relied on the deceased before their passing. Hence, a prospective family provision applicant should not feel guilty about making an application, as the limitations of the legislation, and the limits on the power of the court, mean that only deserving applicants are successful in their claims.

Now that the rationales behind the different challenges to a will are uncovered, hopefully you feel more confident in your decision to contest a will. When you are ready to make the next step, we will be with you every step of the way.

Want to learn more? Ready to speak with a lawyer? Get in touch with us.

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