Maurice Blackburn

When someone close to you dies it is always a difficult time. However, if it comes as a shock that the deceased has not remembered you in their Will it can be very upsetting.

While the law recognises that when making a Will a person (the Testator) has the right to deal with their estate as they wish, there is legislation in place to protect those to whom the deceased had a moral responsibility.

A Will can be challenged if:

• you haven't been fairly provided for or have been left out of a Will
• you believe that a Will is grossly unfair
• you have reason to believe the Testator (the person whose Will it is) was not in a sound state of mind when they made a Will, or
• the intentions of a Will are unclear.

Challenging a Will

The time limits to contest a Will vary from state to state.

In Victoria, anyone can challenge a Will, provided they do so within six months of the date the Grant of Probate is issued.  In the ACT, the time limit to contest a Will is 12 months of the date the Grant of probate is issued.

Why your Will is important

A valid Will is particularly important if you:

• have children under the age of 18 or still dependant on you (for example full-time students or children with a physical or mental disability)
• have a de facto partner who you wish to provide for
• are no longer married and wish to alter your bequests to a new partner or children from any relationships
• wish to specifically exclude someone from your will, for example a close relative with a drug or alcohol problem, or a wealthy relative

• wish to establish a trust to manage your assets or to donate to charity, and jointly own property or assets.

FAQs about contesting a Will

Can I challenge a Will?

New wills legislation means you can contest a Will where:

• the testator's intentions are not carried out in the Will
• an error has been made in the Will or its provisions are ambiguous
• the testator had a lack of capacity to make the Will, or
• inadequate provisions have been made for family members or people who should be provided for.

When do I need to change my Will?

You need to update your Will if your circumstances change, for example when you have children, marry or divorce. Your current and former partners could become involved in a court battle over your assets if you do not have an up-to-date Will.

What should I think about when preparing my Will?

When preparing your Will, consider:

• who your beneficiaries are (the people you leave your assets to)
• who your executor will be (the person who carries out your Will's instructions)
• who will look after your children (they need a guardian if they are under 18 or not able to care for themselves)
• whether you want to leave anyone out of your Will (it is best to outline your reasons)
• what your funeral arrangements are
• what happens if your beneficiaries die before you do (who will receive the assets), and
• what your assets are - for example, property, superannuation, all bank accounts, collections of goods and antiques.
• whether you want your legal advisors to prepare an Enduring Power of Attorney (this authorises someone to act for you and manage your affairs if you are incapacitated).

What type of Will do I need?

Generally your legal adviser will prepare either a standard or a non standard Will.

A standard Will is where you choose to leave everything to your partner and any children of the relationship.

A non standard Will, which costs more to prepare, will be recommended if you are in a de facto relationship, have children from more than one relationship, have complicated financial circumstances, you need to make special arrangements for any beneficiary or you own a share of a business or company or have a trust arrangement.

You cannot give away jointly owned assets, so if you have any, it is important to seek legal advice.

Someone else's story

In each of the following examples, Maurice Blackburn have settled Will disputes:

Paul8 loved his father, but didn't spend much time with him. After their parents divorced while he and his sister were in their teens, Paul lived with his mum and Simone, his sister, lived with their father. When his father - Joseph - died, he left his entire estate to Simone, including the family home where Paul had spent most of his childhood.Paul didn't expect much of an inheritance, but he was shocked to learn he didn't get anything at all - despite their family circumstances he still loved his father and thought he still loved his son.

Jean* had a good relationship with her mother for most of her life. She was a loving and dutiful daughter and helped her mother in whatever way she could. Unfortunately they had a falling out when her mother was elderly, which didn't resolve before her mother died.When her mother - Teresa - died, she left her entire estate to Jack, Jean's brother, including the family home. Jean was shocked to learn she didn't get anything at all - despite their estranged relationship she still loved her mother and thought she still loved her.

Jim* had a fairly normal childhood. He had the usual squabbles with his parents and brothers and sisters but they got along okay. In his adult life, a family quarrel caused a falling out between the siblings and unfortunately also caused him to become estranged from his parents. He always felt he was the "black sheep" of the family and the rift between them grew deeper until, after his father died, he hardly saw his mother in the later years of her life. When his mother - Meg - died, she left her entire estate to his sister and brother, Joan and Rick, including the family home where Jim had spent most of his childhood. Jim didn't expect much of an inheritance, but he was shocked to learn he didn't get anything at all. Despite their estranged relationship he felt that his mother would have recognised him in some way in her Will.

Maurice Blackburn were able to negotiate settlements for Paul, Jean and Jim. By bringing their cases to a resolution early, Maurice Blackburn avoided taking the matters to Court. This kept legal fees to a minimum and helped avoid the stress associated with legal proceedings.

If you think you have been unfairly treated, or have missed out on a rightful inheritance, call Maurice Blackburn on 1800 810 856.

* Name changed for privacy reasons.