It’s not uncommon for a person’s wishes to change after a will has been written, and it’s also not uncommon for a will to fail to reflect a person’s current wishes at the time of their death. There could be any number of reasons that a will does not accurately reflect one’s wishes at any given time, including the hassle of having to revise a will and record a revised will, the cost, or just plain procrastination or poor circumstances. Would it be fair for an ex-wife to claim her ex-husband’s entire estate while nothing is allotted to his current wife and any children they may have? As uncomfortable as it may be, there are a number of circumstances that can justify contesting a will.
The Right to Make a Will
In general, Australian law supports the right for a person to make a will that is not constrained by the typical notions as to what is fair or unfair to dependents and family members. Whilst this recognition respects the individual rights of the person who writes the will, there are sometimes situations that lead to scenarios that can be grossly unfair to unrecognised yet valued members who may be left without any benefits.
When it comes to contesting a will in NSW and QLD, the law allows would-be beneficiaries and heirs to do so if the situation is considered grossly unfair with other extenuating circumstances such as financial needs of family members, the existence of dependants who financially depended on the deceased either partially or fully, and whether or not the deceased had the mental capacity to understand his or her actions while drafting the will. In cases when the deceased did not have the mental capacity to understand his or her actions when drafting the will, there may be a basis to legally dispute any of the beneficiaries’ shares. In some cases, there may be claim of undue influence, alleging that the executor of the will was unduly influenced by one or more persons prior to signing the will, so the will did not accurately reflect the true wishes of the deceased.
Fairness, Mental Capacity, and Financial Dependency
In New South Wales, the Succession Act of 2006 and the amendments to the Family Provision Claim relating to the act governs the questions of fairness and probity as they relate to the wishes of the deceased. The act and amendments are examples of the type of legislation in other states including Queensland. This legislation involves basic questions of fairness, the mental capacity of the deceased, and the financial dependency of those family members, heirs, or other parties that may have a reasonable claim to some of the deceased’s estate. In NSW & QLD, the law for estate disputes recognises that life partners or others who meet some or all of certain criteria may have a right to contest a will that is deemed unfair.
No Win, No Fee
It is not uncommon for lawyers to provide services to contest a will with a “No Win, No Fee” option that provides for legal assistance on a contingency basis. This option gives contesting parties access to an expert team of lawyers who will assist with the contesting of a will regardless of financial situations that might otherwise deter such parties from participating in costly legal proceedings.