Contesting a Will is an application to the Court to seek adequate provision from the Estate of a deceased person. This can be made from a ‘Family Provision’ claim, ‘Testator Family Maintenance’ claim or ‘Part IV’ claim.
There are a number of reasons that prompt a person to contest a will. In some cases, they may have been completely left out of a will, or they may not have received what they deem to be a ‘fair share’ of the assets.
When such a claim is made to the Court, the Court will take the following factors into consideration to decide whether or not the claim will be successful. In order to make a successful contest, the Court has to be satisfied that:
- The claimant is an eligible person; and
- The deceased had a moral duty to provide for that person’s maintenance and support; and
- The distribution of the deceased’s estate as set out in the Will, or pursuant to the rules of intestacy, fails to make adequate provision for their proper maintenance and support.
The above rules may seem broad and the Court’s decision will be based on a number of factors that directly relate to the individual circumstances of the case. In order to examine whether the relationship between the deceased and the applicant is a decisive factor, we will first have to examine these three factors.
1. The Relationship with the Deceased and Contesting a Will: Eligibility
Under Section 90 of the Administration and Probate Act 1958 (VIC) someone who has the following types of relationship with the deceased may be eligible to contest a will.
- Spouse: The Spouse must be married to the deceased as at the date of death.
- Domestic Partner: The Domestic Partner may be in a “registered”, or “un-registered”, relationship with the deceased as at the date of death. If unregistered, establishing the relationship with the Deceased will come down to whether the person was living with the deceased as a couple on a “genuine domestic basis” (pursuant to the Relationships Act 2008). In order to be eligible to contest a will, the domestic partner must have been living with the deceased for a continuous period of 2 years before their death, or have a child with them who is under 18 years of age.
- Former Spouse or Domestic Partner: Former spouses or domestic partners are only eligible to claim in an estate if, at the time of death, they would have been able to take proceedings under the Family Law Act 1975. As long as these proceedings have not been taken or finalised and they are now prevented from taking or finalising those proceedings because of the deceased’s death.
- Carers: A carer can only bring a claim if they are in a “registered caring relationship” with the deceased as defined under the Family Law Act 1975.This relationship should not be for a “fee or reward” and must be between two people who are not a couple or married to each other.
- Children: A child of the deceased, including adopted or stepchild, or someone who believed the deceased to be their parent and was treated as such is eligible to contest a will if they meet the following criteria. At the time of death, they were under the age of 18, a full-time student under the age of 25, or suffering from a disability.
- Adult Children: In order to be successful, adult children also have to prove that they are not capable of providing adequately for their own maintenance and support, creating a moral obligation of the deceased.
- Grandchildren: This includes step grandchildren or adopted grandchildren. However, in order to be eligible, there is a requirement that the grandchild was dependent on the deceased in the same way that a child is dependent on a parent.
- Member of the Deceased’s Household: This may be a person who is a member of the deceased’s household at the date of death. A person who claims under this category must either have been wholly, or partly, dependent on the deceased for their proper maintenance and support.
Based on the above, if you fall under one of these categories, you may be Eligible to contest a Will. However, as we mentioned above, a will can only be contested if the deceased also had a moral duty to provide for you.
2. The Deceased’s Moral Duty to Provide Maintenance and Support
Unlike other Australian states, in Victoria there is no pre-determined list of eligible applicants for the purposes of family provision claims. In Victoria, the court considers whether the deceased had a moral duty to provide for a surviving person who can demonstrate a need for provision.
The Administration and Probate Act (Vic) 1958 outlines the following considerations that the court will look at to determine whether a deceased person had a responsibility to provide for an applicant:
- The relationship between the deceased person and the applicant, including the nature and length of the relationship
- Obligations or responsibilities that the deceased had to the applicant as well as any other applicants and the estate beneficiaries
- The size and nature of the estate, as well as any liabilities of the estate
- The financial position and financial needs of the applicant, as well as other applicants and the other beneficiaries of the estate
- Any physical, mental or intellectual disability of the applicant or other beneficiaries of the estate
- The applicant’s age
- Contributions the applicant made to the estate, as well as to the welfare of the deceased or the family of the deceased
- Any benefits or significant gifts given by the deceased to the applicant or to any other beneficiaries
- Whether the applicant was being maintained, either in whole or in part, by the deceased person before their death
- Whether any other person has a responsibility to maintain the applicant
- The applicant’s character and conduct
- The extent & nature of the communication between the deceased & the claimant. Whether that be cards, emails, phone calls and visits throughout the relationship.
- Any other matter the Court considers relevant.
3. Adequate Provision For Proper Maintenance And Support
The term ‘Adequate Provision for Proper Maintenance and Support’ is deliberately ambiguous as it is considered relative to each individual’s circumstance. In order to decide whether adequate provision has been made for the applicant, the Court takes into consideration the terms ‘adequate’ and ‘proper’.
For example, if the child of a wealthy father was not given the amount that he expected from his parent’s estate, he may be able to contest the will. Despite the fact that the lower sum may ‘adequately’ cover his necessities, the amount may not ensure his ‘proper’ maintenance. This is because ‘proper’ maintenance is determined by considering whether the applicant has been given enough to live comfortably, in the lifestyle that they are accustomed to. As such, the applicant doesn’t necessarily have to be experiencing financial hardship to be awarded a greater share of the estate.
How does this Relate to the Closeness of the Relationship?
What all of the above means, is that there are no hard and fast rules as to what the Court will decide in a will dispute case. The Court will take a number of factors into consideration that are specific to the unique situation of the case.
One of the most common types of case that would fall under this situation is that of an estranged child. A parent may decide that they do not want to provide for their estranged child when they die. In these circumstances, a child can make a claim for provision from their parent’s estate, even if they had an estranged relationship. However, it is not guaranteed that the claim will be successful.
An estranged child’s claim will be determined on the list of factors we discussed above:
- Whether the parent had a ‘moral duty’ to provide for their child;
- Whether the parent failed to make ‘adequate provision for the proper maintenance and support’ of their child; and
- In certain circumstances, whether the child can provide for their own ‘proper maintenance and support.’
The Court can also consider a range of other factors under the Administration and Probate Act (Vic) 1958, as mentioned above, including the nature of the relationship between the parent and child, the character and conduct of the child and the size of the estate. As the specific circumstances of each case are different for every family, it can be difficult to predict what the Court will decide. The following Case Studies outline two will contest cases from estranged children that had very different outcomes.
Larkin v Leech-Larkin  NSWSC 1418
In the case of Larkin v Leech-Larkin, a case was brought to the NSW Supreme Court involving estrangement between a deceased mother and her son, Julian. The deceased had 4 sons, but left the entirety of her estate to her second son, Lucien. The two other sons did not make a claim against the estate, however, the third son, Julian did.
The Court heard that Julian had a strained relationship with his mother as a result of Julian continuing to have a relationship with his father following their divorce. Julian did not make meaningful contact with his mother in the last 40 years of her life, while Lucien, who was the sole beneficiary of his mother’s estate, had a much closer relationship. They had a shared property in the Blue Mountains, which Lucien had significantly contributed to. The Court ultimately dismissed the application by the estranged son, Julian.
Jodell v Woods  NSWSC 143
The Supreme Court of New South Wales also heard the case of an elderly mother with two daughters. The mother died in 2015, leaving her $2 million estate to her younger daughter as her elder daughter was estranged. Her previously deceased husband had left much of his residuary estate to the estranged daughter. The relationship between the eldest daughter and her mother was not good. However, the evidence showed that the estranged daughter had made attempts to reach out to her mother to resolve the dispute between them. She attempted to make amends during and at the end of the deceased’s life by attempting to keep in contact, and by visiting the deceased. However the mother did not reciprocate.
In this case the Court said that:
“I do not regard the circumstances of the Plaintiff’s relationship with the deceased to be such as to relieve the deceased of her obligation to make adequate provision for the proper maintenance and advancement in life of the Plaintiff.”
Taking into consideration the awards from her father, the estranged daughter was awarded a lump sum payment of almost $500,000. Significantly less then her sister, but more than she would have received had she not contested the will.
These cases demonstrate the complexities of Will Dispute cases and the range of factors that are taken into consideration by the Court in these matters, including the closeness of the relationship between an applicant and the deceased. As a potential claimant’s circumstances vary from matter to matter, we recommend that you contact an estate lawyer for an assessment of your case.