Myth Buster Series - Wills are the full and final wishes of a deceased – or are they?

Posted by Luke Mitchell on 30 October 2014

Many people assume that if a deceased had a will then thee is nothing that can be done to challenge the will or amend who may receive a benefit from the deceased’s estate. However, this isn’t quite true.

There are two main issues that can be explored when assessing whether the deceased’s will is the final word on their estate.

Challenging the will on a technical ground

A will can be challenged on a number of grounds including but not limited to fraud, lack of capacity on behalf of the will maker, undue influence, forgery or lack of the will maker having knowledge and approval of what is contained in the Will.

However, in order to have an ability to challenge the will on such grounds a person must show that they have an “Interest” in the deceased estate. That means you must have either an entitlement in a previous Will or an entitlement on Intestacy (if there is no Will) and you are entitled to a share of the deceased estate by way of your State Legislation.

Being left out of a will or not receiving a full entitlement under a will

If you are an eligible person you have the right to contest the will and make what is called a family provision claim. Eligible persons include:

  • a person who was the wife or husband of the deceased at the time of death, 
  • a person with whom the deceased was living in a de facto relationship at the time of the death, 
  • a child of the deceased, 
  • a former wife or husband of the deceased, 
  • a person: 
    • who was, at any particular time, wholly or partly dependent on the deceased, and 
    • who is a grandchild of the deceased or was, at that particular time or at any other time, a member of the household of which the deceased was a member, 
  • a person with whom the deceased was living in a close personal relationship at the time of the deceased’s death.

However this does not mean that an eligible person will automatically succeed in their claim. Their rights to family provision will involve the consideration of many factors including:

  • their relationship with the deceased;
  • Any obligations or responsibilities owed by the deceased to them;
  • The size and content of the estate;
  • Their financial circumstances;
  • Their age;
  • Any disability that they may have;
  • Other beneficiary's rights;
  • Many other factors.

If you think that the will of a loved one who has passed is not the final word on their estate please call our Wills & Estates team for expert advice.

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