What is a will and what do I need to include in my will?

A will is a legal document which sets out exactly how you want your assets to be distributed after you pass away. A will allows you to appoint a person called an executor who will manage your estate after you pass away and distribute it for you in accordance with the terms of your will.

It is important to have a will in place. If you do not have a will in place before you pass away, your estate may be distributed in accordance with a formula set out in law.

A will is only valid if: 

  1. It is in writing, and 
  2. Signed by the testator, whether or not at the foot of the instrument, or 
  3. Signed by any other person in the testator’s presence and under their directions, 
  4. It appears from the will that the testator (the person making the will) intended to give effect to the will by signing it, 
  5. The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time who must attest and sign the will in the presence of the testator, 
  6. The signatures of at least two witnesses must be made or acknowledge in the presence of the testator. 

Persons benefiting from the will or immediate family should never witness wills. This avoids the potential for disappointed beneficiaries alleging that the testator was coerced or placed under duress. 

You will need to include an executor in your will. This is the person responsible for carrying out your wishes in accordance with you will after you pass away. Appointing an executor is usually a straightforward process and will usually be the major beneficiaries of your estate, although this is not a requirement. You should also name substitute executors in your will in case your first intended executor is unable or unwilling to act. 

Wills often deal with a host of other matters including: 

  1. How you wish your remains to be disposed of, for example whether you wish to be buried or cremated.
  2. Whether you wish to donate your body or a part thereof for medical or scientific purposes. 
  3. Guardianship of infants or minors. 
  4. Setting up a trust for children or a person with a special disability 

Can I challenge or contest a will?

Challenging and contesting a will have two distinct meanings at law. Challenging a will questions its validity and contesting a will questions the fairness of the provisions in the will. 

You can contest a will if you believe:

  1. the will was incorrectly executed or tampered with;
  2. the will was unduly pressured by others;
  3. the testator (the person who made the will) was incapable of making a will; or
  4. the meaning of the will is unclear. 

 

You can contest the will if insufficient provision has been made to you (provided you are an eligible person) and the testator had an obligation to provide for your proper maintenance.

What is a family provision claim or Part IV claim?

The term contesting a will is often used to refer to making a family provision claim against a deceased estate under Part IV of the Administration and Probate Act. What this means for you is that, if you have been left out of a person’s will or have not received what you believe you are entitled to, you may be able to make a claim from the deceased person’s estate.

A Part IV claim is made for your proper maintenance and support. To most people, the words proper maintenance and support would suggest that you would have to have some kind of need. However, this term is intentionally ambiguous and does not necessarily exclude well-off individuals from making claims. For example, we have been successful in obtaining hundreds of thousands of dollars for retiree clients, with substantial superannuation balances, a home valued in excess of $1,000,000, tens of thousands of dollars in savings and a minimal mortgage.

Who can make a Part IV claim?

The rules in relation to who can contest a will under Part IV of the Administration and Probate Act have recently changed. It is important that you are aware of these new rules and how they could affect your claim. There are now two different laws that apply depending on what date the person passed away:

  • If the person passed away before 1 January 2015, any person can commence a family provision claim against the Estate provided that the deceased had a responsibility to make provision for that person.
  • If the person passed away on or after 1 January 2015, only certain people can contest the will. This includes: spouses; domestic partners; former spouses; former domestic partners; children; step-children; a person who believed they were the child of the deceased or were treated by the deceased as their child; grandchildren; a registered caring partner; a member of the household (or a person that had been a member of the deceased’s household in the past and would have been likely to in the near future again become a member had the deceased not died); and a son-in-law or daughter-in-law (including de facto) of the deceased.

How will the court decide my case?

The court decides each matter on a case by case basis. The court will look at all the relevant factors of your individual case. Under the Administration and Probate Act, there are several factors that the court must have regard to and several factors that the court may have regard to.

The court must have regard to:

  • The deceased’s will (if any);
  • Any evidence of the reasons that the deceased person made the dispositions in their will;
  • Any other evidence of the deceased person’s intentions in relation to providing for an eligible person (eligible persons are discussed above under who can contest a will?).

The court may have regard to the following criteria:

  • Any family or other relationship between the deceased person and the eligible person. This includes both the nature of the relationship and, if relevant, the length of the relationship.
  • Any obligations or responsibilities that the deceased person had to: the eligible person making the claim; any other eligible persons; and to the beneficiaries of the estate.
  • The size and the nature of the deceased person’s estate as well as any charges and liabilities (such as mortgages, expenses, fees and other debts) that the estate is subject to.
  • The financial position of the eligible person making the claim; any other eligible person; and the beneficiaries of the estate. A person’s financial position includes their financial resources, including their earning capacity, and their financial needs. The court may have regard to your financial position at the time of hearing the case and into the foreseeable future.
  • Any physical, mental or intellectual disability of any eligible person or any beneficiary of the estate.
  • The age of the eligible person.
  • Any contribution of the eligible person to building up the estate or to the welfare of the deceased or the deceased’s family – importantly, this does not include circumstances where the contribution was made in return for adequate consideration (consideration means a right, interest, profit or benefit and most typically takes the form of cash payments).
  • Any benefits that were previously given by the deceased person to any eligible person or to any beneficiary of the estate.
  • Whether the eligible person was being maintained by the deceased person before their death either wholly or partly and, if the Court considers it relevant, the extent to which and the basis on which the deceased person maintained the eligible person.
  • The character and the conduct of the eligible person or any other person (this means that the Court potentially can, at its discretion, reward good conduct and punish bad conduct).
  • The effects that making a family provision order would have on the amounts received from the deceased’s estate by other beneficiaries.
  • Any other matter the Court considers to be relevant.

It is very difficult to provide general advice on how the above factors impact particular claims. Each case is different and has its own unique history, facts, complexities and issues. Depending on the case, some factors may be more important than others. Because your case is unique, it is important that you seek advice from a wills and estates lawyer on how the court would treat your individual case.

In our experience, the Court is generally very thorough and will carefully examine all the evidence in detail. It is imperative that you prepare the strongest possible case and provide your estate lawyers with all the evidence that you have available to you. This will help ensure that you do not miss out on anything that you are entitled to. You should not worry about whether the evidence is important or not. It is your lawyer’s job to make that decision.

Time limits for contesting a will

There are strict time limits in Victoria for contesting wills. The time limit in Victoria is six (6) months from the date that probate has been granted to the executor of the deceased estate.

Probate is the process of proving and registering the last will of a deceased person in the Supreme Court. When probate is granted, the executor will be given a certificate known as a Grant of Probate. The certificate will clearly state the date on which probate was granted. You have exactly six months from the date that probate was granted to contest the will.

It is still possible to bring a claim after the 6-month period provided that the deceased person’s estate has not already been completely distributed. To contest a will out of time, you must apply to and be approved by the Supreme Court. It can be very difficult to obtain an extension of time for lodging an estate claim, so you should always make sure that you file your claim on time or if you are out of time, you do not delay seeking an extension.

We always recommend that if you believe you are entitled to contest a will you should seek legal advice from a wills and estates lawyer in relation to your rights at the earliest opportunity.

When can I challenge the validity of a will?

You can challenge a will if:

  • At the time of executing the will, the testator (the person who is making the will) did not have the capacity to execute the will. For example, a testator may not have had capacity if they were suffering from any illness or disorder which affected their mental state;
  • At the time of making the will, the testator was unduly influenced by another person. This means that another person influenced the testator when they were deciding what would go in the testator’s will;
  • The testator did not approve of the contents of the will;
  • There are suspicious circumstances surrounding the making of the will;
  • The will was not executed properly; and
  • The will has been tampered with.

This list is not extensive and there are other circumstances in which a will can be challenged. If you are concerned with a will and believe that you may be entitled to challenge a will, it is important that you speak to an experienced wills and estates lawyer.

Lack of testamentary capacity or intent

Banks v Goodfellow (1870) LR 5 QB 549 is the leading case on testamentary capacity. It provides that in order to have necessary testamentary capacity, the testator must: 

  1. Understand the nature and effect of the will; 
  2. Understand in general terms the nature and extent of their property; 
  3. Comprehend and appreciate the claims to which they ought to give effect; 
  4. Weigh the respective strengths of those who may have such claims; and 
  5. Not be suffering any delusions with regards to those people that should be considered when making the will. 

If the testator did not to have the mental capacity at the time of instructing a lawyer to prepare the will, or upon the execution of the will, then it will be invalid. 

Undue influence

A will may be challenged where there has been undue influence. When deciding whether there has or has not been undue influence, the Court will look at whether the testator was coerced into executing the will. A person challenging a will for undue influence must be able to show that the testator was coerced, not just persuaded, into executing the will. 

Lack of knowledge and approval

At the time of executing a will, the testator must have known of and approved the contents of their will. A properly executed will usually carries with it a presumption that the testator knew and approved the contents of the will. However, where there has been fraud or a mistake the testator might lack knowledge of the contents of their will. 

Fraud

A will can be challenged for fraud where a beneficiary or potential beneficiary of the will has engaged in fraudulent conduct by, for example, misleading the testator into giving them an unwarranted gift. 

When determining whether there has been fraud or not, the Court will look at whether the testator was subjected to conduct which is misleading or deceptive, that is conduct which misled the testator. 

Forgery

In order to be successful in setting aside a will as being a forgery, you will need to have strong and persuasive evidence that the will is a forgery. 

If you are concerned that the will was executed in suspicious circumstances or that it is a forgery, you should speak with a wills and estates litigation lawyer. 

Time limits for challenging a will

Unlike family provision claims, there are no time limits when challenging a will but you will have a better chance of success at challenging the will before a grant of probate is issued. If probate has already been granted you can still challenge the will but the process becomes more difficult. 

If you intend to challenge a will it is good practice to first file a caveat in the Supreme Court, provided that you have standing to do so. This will prevent the Court from granting probate until the caveat is removed, either by agreement or by order of the Court. 

Can I challenge the meaning of a will?

In short – yes. Not all wills are simple and easy to understand. Sometimes, the terms of the will can be complicated and be interpreted differently by different people. This can often lead to disputes in cases where how the will is interpreted can impact on how much, if anything, a person will receive under a will. If this is an issue in your case, you can apply to the Court to decide the intended meaning of the will.

For example, a deceased may have included a term in their will that a person (Beneficiary A) should only receive a distribution from the estate if that person remains the deceased’s carer until their death, otherwise the estate is distributed to another person (Beneficiary B). It may be the case that, as the deceased aged, Beneficiary A was no longer able or qualified to care for the deceased by themselves and the deceased had to be admitted into a nursing home. Depending on the circumstances, Beneficiary A may still very well be a carer under the will.

The information is intended to be a general guide only and is not intended to constitute professional or legal advice. Destra Law expressly disclaims any and all liability for any loss or damage arising from reliance upon any information on this webpage. To discuss concerns about Wills & Estates Law, please do not hesitate to contact Destra Law on 03 9898 8282, at info@destralaw.com.au or by filling out our contact form.