Challenging a Will: What are your rights?

When someone close to you dies, the last thing on your mind is usually what you stand to gain from the person’s will.

But if you have been left out of the will or the deceased hasn’t left you much, it is important to act quickly to protect your rights.

You only have 12 months to challenge a will.

The 12 months begins from the date of death.

The first hurdle you need to overcome is to satisfy the Court that you are an ‘eligible person’.

An eligible personis:

  • the wife or husband of the deceased
  • the deceased’s defacto
  • a child of the deceased
  • a former wife or husband of the deceased
  • a grandchild of the deceased who was wholly or partly dependent on the deceased
  • a member of the deceased’s household who was wholly or partly dependent on the deceased
  • a person with whom the deceased was living in a close personal relationship at the time of the deceased’s death

If you get over the first hurdle, the next obstacle you need to overcome is to convince the Court that the provision (if any) made for you in the will is inadequate for your ‘proper maintenance, education and advancement in life.

In determining this, the Court will consider, amongst other things, your financial position, the size and nature of the deceased’s estate, your relationship with the deceased, and the relationship between the deceased and other people who have legitimate claims on the estate.

The final stumbling block which must be overcome before a Court will make provision (or extra provision) for you is to persuade the Court that an order should, in fact, be made in your favour.

To illustrate this last point, if the estate, for example, was so small that the creditors could not even be paid, even though you might be a very needy person, the Court may not make provision for you.

Obviously it is very important to obtain expert legal advice before embarking upon any challenge to a will.

If a challenge is to be made, your lawyer should be able to tell you what your prospects of successfully challenging the will are before you commence any Court action.

By Steve McAuley of McAuley Hawach Lawyers

Email: stevemcauley@mcauleyhawach.com.au