Guide to Challenging a Will

Transcription

1 Guide to Challenging a Will

2 If you have been left out of a Will or feel that you have not been adequately provided for in someone`s Will, please contact us to arrange an obligation free appointment for preliminary advice. There are two common ways in which a Will may be challenged. The first action is on the basis that the Will is not valid. This kind of action is referred to as Solemn Form Proceedings as it requires the parties to prove the validity of the Will. A will is invalid if the will-maker lacked the requisite testamentary capacity at the time the Will was made. A will may also be found to be invalid if the will maker was unduly influenced or if there are suspicious circumstances surrounding the making of the will. Most commonly, a Will is found to be invalid on the grounds of lack of testamentary capacity. The second action is on the basis that although the Will is valid, it does not make proper and adequate provision for a person who has standing to apply for increased provision from an estate under the relevant legislation. This kind of Court action is referred to as a Family Provision Application. 1. Solemn Form Proceedings In order to successfully ground an action for solemn form proceedings on the basis of lack of testamentary capacity the applicant must demonstrate that the will-maker did not meet the requisite legal test. The test is a legal test and not a medical test. The legal test is contained in the case of Banks v Goodfellow (1870) LR 5 QV 549 which stated: It is essential to the exercise of (testamentary) power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - and that no insane delusions shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made 1

3 This formulation produces four criteria for assessing the deceased s capacity as follows. The will-maker must: i. understand the nature and effect of a will; ii. understand the extent of their property; iii. understand the claims to which they ought to give effect; and iv. be able to evaluate rationally the comparative claims on the estate. The test is determined on the balance of probabilities, based on the whole of the evidence. The Court considers both lay evidence (witness testimony) as well as medical evidence when making a determination. 2. Family Provision Proceedings Where adequate provision had not been made from the estate for the proper maintenance and support of certain categories of persons relating to the deceased, the Court may make an order that provision be made out of the estate of the deceased for that person. The relevant section of the Queensland legislation is s 41 of the Succession Act 1981(QLD): (1) If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant. (2) Unless the court otherwise directs, no application shall be heard by the court at the instance of a party claiming the benefit of this part unless the proceedings for such application be instituted within 9 months after the death of the deceased; but the court may at its discretion hear and determine an application under this part although a grant has not been made. In Queensland spouses, children and dependants are eligible to apply for a Family Provision Order. The relevant section of the New South Wales legislation is s 59 of the Succession Act 2006 (NSW): (1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57-having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. 2

4 In New South Wales spouses, children, former spouses (in some circumstances), dependants, grandchildren (in some circumstances), and a person in a close personal relationship with the deceased person are eligible to apply for a Family Provision Order. In the case of Signer v Berghouse, the High Court laid out a two stage process for deciding an application for family provision. In summary, the two stages are: 1. Under the Will or intestacy rules, is there inadequate provision for the applicant s proper maintenance, education and advancement in life. This is a question of fact (although it necessarily invokes some value judgment). 2. If so, what if any, provision ought to be made out of the estate in favour of the applicant. This is a discretionary exercise. There are a number of factors relevant to the Court s two stage enquiry as set out above. The predominant considerations for the Court are the financial and material circumstances of the applicant and their relationship with the deceased person. It is important to be conscious of the time limits that are applicable to a Family Provision Application. A Family Provision Application in Queensland must be commenced within nine months from the date of death of the deceased. A Family Provision Application in New South Wales must be commenced within twelve months from the date of death of the deceased. If you have been left out of a Will or feel that you have not been adequately provided for in someone s Will, please contact us to arrange an obligation free appointment for preliminary advice. Our experienced lawyers will be able to provide you with an assessment of your prospects of bringing a claim and outline the terms upon which we are prepared to accept your instructions. In many cases we agree to act for you on a no win no fee basis. This means that we do not charge you anything for costs and disbursements until the end of the case and we only charge you if we win! For any enquiries regarding Contesting Wills on a No win No Fee Basis, please contact the Department Manager Donna Tolley, on direct line (07) or by on dtolley@attwoodmarshall.com.au. 3

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