What is the point of having a Will if it can be challenged?

When you make your Will you would like to think that your choice of beneficiaries could not be challenged. There have been some recent cases which have raised questions about ‘What is the point of having a Will if it can be challenged, contested or disputed?’

The validity of a Will can be challenged on several grounds. These can include:

  • failure to meet the formal requirements of a Will –  such as being signed by the testator and two witnesses.
  • the Will maker (Testator) was not of sound mind;
  • the Testator was unduly influenced or pressured by another person/s when making the Will – this is called duress;

In Tasmania, if a person dies and their dependants feel that they are left ‘without adequate provision for proper maintenance and support’ they could make an application for further advancement under the Testators Family Maintenance Act 1912. However, this provision is restricted to the following groups of people:

  • the surviving spouse or partner of the deceased;
  • the children of the deceased, including adopted and stepchildren (if a biological parent survives the deceased);
  • the parents of the deceased, if the deceased had no spouse or children; and
  • a divorced spouse or an ex-partner who is receiving or is entitled to receive maintenance from the deceased at the date of death.

 

What matters may the Court take into account?

  • The total value of the deceased’s estate
  • The circumstances and needs of the claimant
  • Whether by current community standards the deceased had an obligation to provide for the claimant
  • The means and needs of competing beneficiaries and claimants
  • The character and conduct of the person making the claim
  • The nature and quality of the relationship between the claimant and the deceased
  • The reasons of the deceased, as far as they are ascertainable, for leaving his or her property in a particular way.

An application under the Testator’s Family Maintenance Act

 A claim must be started within three months after the date of Probate or Letters of Administration being granted. However, this period may be extended by the Court.

 

How can I ensure that my Will is legally sound?

  • Seek professional advice when making your Will; and
  • Review your Will regularly, in particular if your circumstances change

In relation to Testator’s Family Maintenance applications, the Courts will balance the right of testamentary freedom, which is the right to leave your estate and assets to whoever you choose, against an obligation to provide for family members or dependants. The fact that a claim can be made against an estate is not a good reason not to have a Will.