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Challenging a Will

When people talk about "Challenging a Will" they are usually talking about one of two things:

  1. Challenging the validity of the Will due to for example fraud, forgery, lack of testamentary capacity, undue influence, duress, pressure or force applied by someone; and
  2. Challenging the contents of the Will on the basis that the Will is an unfair Will because it fails to provide adequately for the testator’s (i.e. Will maker's) spouse, domestic partner, children, dependants etc.

When the first type of challenge is made, the Court must decide whether the entire Will is valid or not. The Court is unable to say that only part of the Will is valid. It’s an all or none situation.

Part IV Testator’s Family Maintenance (TFM) Claims

The relevance of Part IV Claims on Will making

Australians are living longer and have increasingly complex family structures.

An important part of making a Will is to give thought to who your dependants are and to whom you might have a legal obligation to provide for in your Will. If you have been maintaining someone during your lifetime, you may well be obliged to provide for them in your will.

A common issue that arises for couples with children from previous relationships is reaching a balance between providing for each other and providing for the children. In blended families, it can sometimes be quite tricky balancing the desire to provide for a spouse or partner and the desire to pass on an inheritance to adult children from a former relationship. These are factors unique to an individual and should be carefully weighed up in making a Will.

It is crucial to obtain expert advice and to consider how assets are owned, be it solely or jointly, whether those assets will even form part of the estate and whether wishes set out in a Will can be fulfilled. Where there are jointly held assets, consideration must also be given to what will happen if both partners die at the same time. It is critical if you have jointly owned assets that you and your partner have "mirror Wills" that cater for the event that you are both involved in an accident, setting out who is to inherit your jointly owned assets if you both die.

What you need to know about Part IV Claims

Challenging the contents of the Will on the basis that the Will is an unfair Will because it fails to provide adequately for the Will maker's partner, children or financial dependents is called a Testator’s Family Maintenance claim or, in Victoria, a Part IV Claim because the law for this type of challenge is in Part IV of the Administration and Probate Act 1958 (Vic).

There are many factors to be taken into account when looking at whether a Part IV claim can be brought to challenge a Will. Those factors include:

  • Whether the deceased person had an obligation to make provision for that person (a moral claim)
  • Whether the person contesting the Will is in need
  • A consideration of competing needs

The Court will take into account the relationships of the deceased, the size of the estate, and the surrounding circumstances or relevant matters.

Estate disputes and Estate litigation

As described above, a Will can be challenged on the basis that it is not valid, or because it is unfair.

Disputes can also arise between varies parties such as Beneficiaries and Executors and Trustees, if there is concern that the Executors and Trustees are not fulfilling their obligations.

Defending a Will

If you are the Executor of an Estate and find yourself in a position where the Will is being challenged, you may wish to defend the Will from challenge.

Challenges to a Will or disputes between parties can result in Estate disputes that, if not resolved by negotiation or mediation, can end up being litigated in Court.

This can be a lengthy and stressful process and our firm is committed to assisting you to settle a dispute early and effectively, with your best interests at heart.

Call 1300 366 441 or find us at an office near you for advice on challenging a Will.

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