DISPUTING A WILL OR INTESTACY


DISPUTING A WILL OR INTESTACY Part IV of the Administration and Probate Act 1958 is where the law may be found prescribing who may dispute a Will and who may dispute the statutory formula that applies to distribute the estate of a person who has died intestate (not having made a Will).

Graham Legal

Graham Legal acts for clients who require advice or representation in disputes involving a challenge to a Will or the application of the statutory formulae upon intestacy. Graham Legal also acts for clients who wish to defend a challenge being made to a Will or intestacy. The merit of each case has to be considered against its own facts. The costs of the process will vary from case to case.

Clients are invited to make an initial appointment for a face-to-face conference. Clients should bring to the appointment all relevant documents. The first 30 minutes of such an appointment are provided free of charge and without obligation. During this time Phillip will give advice as to the merits of the client's claim and as to the costs the client is likely to incur if instructions to act are received.

Disputing a Will

The Victorian Law Reform Commission published a Report into these matters in June 2013. This page of the Graham Legal website draws, in part, from the Commission's Report.

Even though a Will may have been formally prepared, signed and witnessed, a Will may still be disputed where the deceased:

  1. lacked testamentary capacity at the time the Will was made;
  2. lacked knowledge of the contents of the Will;
  3. did not approve the contents of the Will;
  4. made the Will in circumstances brought about by fraud or where the Will is a forgery;
  5. made the Will under the undue influence of another person(s); and/or
  6. failed to make provision for the proper maintenance and support of an eligible person.

We will below consider each of these avenues for dispute.

Testamentary Capacity

The test for testamentary capacity is a common law test. A person must be of sound mind, memory and understanding to make a Will. However, a will-maker is assumed to have been of sound mind unless evidence is presented that calls into question the person's capacity.

In order to have the necessary soundness of mind the person must understand the nature and effect of a Will, understand the nature and extent of their property, comprehend and appreciate the claims to which they ought to give effect and not be suffering from any disorder of the mind or insane delusion that would result in an unwanted disposition.

Knowledge and Approval

In order for a Will to be valid, it is necessary that the will-maker had knowledge of and approved the contents of their Will.

Where a suspicious circumstance exists, the person seeking to uphold the Will must prove that the deceased knew and approved its contents. The courts have not limited what situations may constitute suspicious circumstances. Courts have held the following circumstances to be suspicious, thus requiring further investigation of the validity of the Will:

  1. Where a beneficiary is involved in the will-making process, for example by witnessing the Will, writing or preparing the Will or taking the will-maker to a legal practitioner.
  2. Where the will-maker is blind, illiterate or mentally or physically enfeebled (weak, vulnerable, susceptible, in a late stage of illness or simply exhausted) to the extent that the person may be induced to do anything for peace and quiet.
  3. The Will was not read to or by the will-maker before it was executed.
  4. The Will in question changes a pattern of previous Wills by cutting out "natural" beneficiaries and replacing them with "recent acquaintances".

Undue Influence

Briefly stated, undue influence involves the imposition of pressure on a person that causes that person to make a Will that does not reflect their true wishes. The doctrine of undue influence is part of the common law and is not referred to in legislation. Traditionally, undue influence has been considered difficult to prove in court.

Fraud or Forgery

In the case of fraud, the person challenging the Will must show that another person deceived or misled the will-maker. For example, a person may encourage the will-maker to take a false view of a potential beneficiary or mislead the will-maker as to the nature of their relationship with a person. Unlike undue influence, the will-maker's will has not been overborne. Rather, the will-maker has been deceived or misled.

Where a person challenging a Will raises the possibility that the Will is a forgery, the Court must be satisfied that the document is not a forgery and was in fact signed by the will-maker.

Family Provision or Part IV Applications

A family provision application is an application to court based on the ground that the will-maker failed to make provision for the proper maintenance and support of an eligible person.

A family provision application may also be made in the case of intestacy where it is believed that the statutory formula for distribution of the estate of a deceased person fails to make provision for the proper maintenance and support of an eligible person.

Family provision applications are the most controversial of the applications upon which Wills (or the intestacy formulae provisions) may be challenged. This has also been the subject of successive changes in the law.

The latest changes to this part of the law are found in Part IV of the Administration and Probate Act 1958. The applications are, therefore, commonly referred to as "Part IV Applications".

The current law resulted from the Government's intention to create a legal environment where family provision applications proceeded justly and effectively, having regard to the primary objective of providing for the proper maintenance and support of persons for whom a deceased had a responsibility to make provision.

Family provision laws recognise that, although people are free to give away their property by Will after they die, or to not make a Will at all, they also have a responsibility to provide for certain people, usually family members. The only persons who may challenge the provision made by the will-maker are called "eligible persons".

A person who fits within one or more of the following categories (A) to (K), are eligible persons who may apply to the court for a family provision order in respect of the estate of a deceased person:

  1. a person who was the spouse or domestic partner of the deceased at the time of the deceased's death;
  2. a child of the deceased, including a child adopted by the deceased who, at the time of the deceased's death, was:
    1. under the age of 18 years; or
    2. a full-time student aged between 18 years and 25 years; or
    3. a child with a disability;
  3. a stepchild of the deceased who, at the time of the deceased's death, was:
    1. under the age of 18 years; or
    2. a full-time student aged between 18 years and 25 years; or
    3. a stepchild with a disability;
  4. a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated by the deceased as a natural child of the deceased who, at the time of the deceased's death, was:
    1. under the age of 18 years; or
    2. a full-time student aged between 18 years and 25 years; or
    3. a child with a disability;
  5. a former spouse or former domestic partner of the deceased if the person, at the time of the deceased's death:
    1. would have been able to take proceedings under the Family Law Act 1975 of the Commonwealth; and
    2. has either:
      1. not taken those proceedings; or
      2. commenced but not finalised those proceedings; and
      3. is now prevented from taking or finalising those proceedings because of the death of the deceased;
  6. a child or stepchild of the deceased not referred to in paragraph (B) or (C);
  7. a person who, for a substantial period during the life of the deceased, believed that the deceased was a parent of the person and was treated as a natural child of the deceased not referred to in paragraph (D);
  8. a registered caring partner of the deceased;
  9. a grandchild of the deceased;
  10. a spouse or domestic partner of a child of the deceased (including a stepchild or a person referred to in paragraph (D) or (G) if the child of the deceased dies within one year of the deceased's death;
  11. a person who, at the time of the deceased's death, is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member;
It is important to note that just because a person is an eligible person within one or more of the categories mentioned in paragraphs (A) to (K) above, this does not of itself mean that the person will be successful in challenging the terms of the deceased's Will.

Section 91 of the Act is also relevant. In part, this Section provides:
  1. … the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of an eligible person.
  2. The Court must not make a family provision order under subsection (I) unless satisfied:
    1. that the person is an eligible person; and
    2. in the case of a person referred to in paragraphs (H) to (K) of the definition of eligible person, that the person was wholly or partly dependent on the deceased for the eligible person's proper maintenance and support; and
    3. that, at the time of death, the deceased had a moral duty to provide for the eligible person's proper maintenance and support; and
    4. that the distribution of the deceased's estate fails to make adequate provision for the proper maintenance and support of the eligible person, whether by:
      1. the deceased's will (if any); or
      2. the operation of Part IA; or
      3. both the will and the operation of Part IA.
  3. For the purposes of subsection (2)(B), the Court must disregard any means-tested government benefits that the eligible person has received or is eligible to receive.
  4. In determining the amount of provision to be made by a family provision order, if any, the Court must take into account:
    1. the degree to which, at the time of death, the deceased had a moral duty to provide for the eligible person; and
    2. the degree to which the distribution of the deceased's estate fails to make adequate provision for the proper maintenance and support of the eligible person; and
    3. in the case of an eligible person referred to in paragraph (F) or (G) of the definition of eligible person, the degree to which the eligible person is not capable, by reasonable means, of providing adequately for the eligible person's proper maintenance and support; and
    4. in the case of an eligible person referred to in paragraphs (H) to (K) of the definition of eligible person, the degree to which the eligible person was wholly or partly dependent on the deceased for the eligible person's proper maintenance and support at the time of the deceased's death.
  5. The amount of provision made by a family provision order:
    1. must not provide for an amount greater than is necessary for the eligible person's proper maintenance and support; and
    2. in the case of an eligible person referred to in paragraphs (H) to (K) of the definition of eligible person, must be proportionate to the eligible person's degree of dependency on the deceased for the person's proper maintenance and support at the time of the deceased's death.
Section 91A of the Act provides

  1. In making a family provision order, the Court must have regard to:
    1. the deceased's Will, if any; and
    2. any evidence of the deceased's reasons for making the dispositions in the deceased's Will (if any); and
    3. any other evidence of the deceased's intentions in relation to providing for the eligible person.
  2. In making a family provision order, the Court may have regard to the following criteria:
    1. any family or other relationship between the deceased and the eligible person, including:
      1. the nature of the relationship; and
      2. if relevant, the length of the relationship;
    2. any obligations or responsibilities of the deceased to:
      1. the eligible person; and
      2. any other eligible person; and
      3. the beneficiaries of the estate;
    3. the size and nature of the estate of the deceased and any charges and liabilities to which the estate is subject;
    4. the financial resources, including earning capacity, and the financial needs at the time of the hearing and for the foreseeable future of:
      1. the eligible person; and
      2. any other eligible person; and
      3. any beneficiary of the estate;,
    5. any physical, mental or intellectual disability of any eligible person or any beneficiary of the estate;
    6. the age of the eligible person;
    7. any contribution (not for adequate consideration) of the eligible person to:
      1. building up the estate; or
      2. the welfare of the deceased or the deceased's family;
    8. any benefits previously given by the deceased to any eligible person or to any beneficiary;
    9. whether the eligible person was being maintained by the deceased before that deceased's death either wholly or partly and, if the Court considers it relevant, the extent to which and the basis on which the deceased had done so;
    10. the liability of any other person to maintain the eligible person;
    11. the character and conduct of the eligible person or any other person;
    12. the effects a family provision order would have on the amounts received from the deceased's estate by other beneficiaries;
    13. any other matter the Court considers relevant.