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Contesting a Will in the ACT

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Only certain people are eligible to contest the Will of someone who lived in Canberra or owned property in Canberra. In law, you are an ‘eligible person’ to make a claim against the deceased’s estate if you were:

  1. the partner of the deceased person;
  2. in a continual domestic relationship with the deceased person for at least 2 years; or
  3. a child of the deceased person.

In special circumstances, stepchildren, grandchildren and parents are also eligible to make a claim. However, this eligibility will depend on whether you were being maintained by the deceased person before their death, and – in the case of grandchildren – there is the additional requirement that either your own parent (who is the child of the deceased grandparent) is no longer alive, or at least one of your parents is no longer providing for you.

In the case of parents claiming against a child’s case, it is still possible to make a claim if the parent was not being maintained by their child before the child’s death – but only if the deceased child did not leave a partner or children of their own.

As you can see, it is primarily the partners and the children of the deceased person who the laws around contesting a Will are designed to help. These are the people who, by virtue of their relationship with the deceased, are entitled to expect an adequate provision from the deceased’s estate.

Of course, just having the right to make a claim is one thing. Whether or not the Court will take seriously your claim and intervene to adjust the effect of a deceased’s person’s Will is another.

The strength of your claim will be judged by a further array of factors, which all need to demonstrate to the Court one principal point: that you were not left with “adequate provision for [your] proper maintenance, education or advancement in life.”

What is “adequate provision” for you is not necessarily what is equal or fair in the distribution of an estate. What is adequate for you could depend on what your own financial circumstances are like, whether your age and health give you particular need, and whether the estate is large enough to provide for you any further. If you’re able to be gainfully employed and you have a good income and resources of your own, is anything else required to properly advance you in life?

The Court is also going to look at the totality of your relationship with the deceased – you may have been their child, but were you estranged from them for 20 years? Did you make any financial or non-financial contributions towards the deceased’s welfare, or did they make any contributions to yours? Did you help the deceased acquire, conserve or improve their property or financial resources? What was the nature and duration of your relationship with the deceased? What have you shown your character and conduct to be?

Even if your conduct was impeccable and your own income is small, it is not just you that the Court has to consider. There are also the financial obligations the deceased had, their responsibilities to anyone else and, potentially, the competing claims of other children or spouses.

There are as many variables to estate litigation as there are families. If you would like to contest a Will and make a claim for adequate provision from an estate, it is important that you contact estate lawyers and that you do so relatively quickly. You have until 6 months after the date of the Grant of Probate or Letters of Administration to bring your claim. You do not want to leave it till the sixth month, as estate assets may have already been dealt with and the funds transferred away.

For more detailed advice on your options in contesting a Will, contact Vik Sundar from Chamberlains Law Firm on (02) 6215 9100 or chamberlains@chamberlains.com.au.

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