Who Can Contest a Will?

Contesting a will isn’t merely about feeling disappointed or overlooked by the distribution of an estate. It’s a formal legal process with specific rules determining who has the right to challenge a will’s contents or validity. If you believe a will is unfair, doesn’t reflect the deceased’s true intentions, or fails to make adequate provision for certain individuals, understanding who can legally contest it is the first step toward deciding whether to take action.

Common Categories of Individuals Who May Contest a Will

1. Eligible Family Members and Dependants (Family Provision Claims):
   In many Australian states, the law recognizes that certain close family members and dependants may need ongoing financial support. If a will doesn’t provide adequately for their maintenance and support, these individuals can apply to the court for further provision. Typically, these eligible people include:
   • Spouse or De facto Partner: This generally includes married partners, registered partners, and long-term de facto spouses.
   • Children: Biological, adopted, and even stepchildren may be entitled to contest the will if they depended on the deceased, especially if they’re minors or have special needs.
   • Other Financial Dependants: In some cases, a person who was financially maintained by the deceased may be eligible. This could be an adult child with a disability, a grandchild who lived with and relied on the deceased, or another relative who received ongoing support.
   Key Point: These “family provision” or “maintenance” claims do not necessarily invalidate the will. Instead, they seek to adjust the distribution so that these individuals receive fair and proper support.
2. Persons Challenging the Will’s Validity:
   Beyond family provision claims, another group who can contest a will are those with a direct interest in the estate who believe the will itself is invalid. This could include:
   • Beneficiaries Named in a Previous Will: If a more recent will leaves them out or drastically reduces their share, they may challenge the validity of the newer will by alleging lack of capacity, undue influence, or fraud.
   • Intestate Heirs: If the contested will were declared invalid, the estate might pass according to intestacy laws. Someone who stands to inherit under intestacy—but not under the current will—might have grounds to contest.
   • Individuals with Suspicious Circumstances: Anyone who suspects the will was forged, made under duress, or signed when the testator wasn’t mentally capable can raise these claims, especially if they would benefit from an earlier valid will or from intestacy rules.
   Key Point: To challenge validity, the person must show that they have a legitimate reason—some form of standing based on a past or potential inheritance—and credible grounds (e.g., undue influence, lack of capacity) that if proven, would alter how the estate is distributed.

Factors Influencing Eligibility

• Local Legislation:
  The exact categories of who can contest a will differ from state to state in Australia. Some jurisdictions have more expansive definitions of who may bring a family provision claim, while others are more restrictive.
• Nature of the Relationship:
  Courts consider whether the claimant was genuinely reliant on the deceased or had a close and meaningful relationship. A distant relative, for example, may have a harder time establishing eligibility than a recently dependent stepchild.
• Existence of Prior Wills or Intestacy Rights:
  If someone stood to inherit under a previous will or would inherit under intestacy if the current will is invalid, they’re more likely to have grounds to contest.

Time Limits and Procedures

Even if you fall into one of the eligible categories, you must adhere to strict procedural requirements and deadlines. These often involve:

• Time Constraints:
  Typically, claims must be filed within a certain number of months after the deceased’s death. Missing these deadlines can forfeit your right to contest.
• Notice and Application Requirements:
  Potential challengers must notify interested parties and submit formal documentation to the court, outlining their relationship to the deceased, their financial circumstances, and the grounds for contesting the will.
• Burden of Proof:
  The challenger carries the burden of proving their claim. For family provision claims, this often means demonstrating a financial need and that the deceased had a moral obligation to provide. For validity challenges, it involves providing evidence of incapacity, undue influence, or other misconduct in creating the will.

Seeking Professional Guidance

Determining eligibility and building a strong case can be complicated. Consulting an estate lawyer familiar with local laws and precedents can clarify your rights, help you assess the strength of your claim, and guide you through negotiations, mediation, or court proceedings.

Final Thoughts

Not everyone can contest a will simply because they find it “unfair.” Legal standing and valid grounds are essential. Spouses, children, and other close dependants typically have the strongest basis for a family provision claim, while beneficiaries from earlier wills or those disinherited under suspicious circumstances may challenge validity.

If you believe you have grounds to contest a will, understanding who qualifies and what criteria apply in your jurisdiction is vital. With the right knowledge and legal advice, you can determine if pursuing a claim is both possible and worthwhile.