Contesting Wills

22 June 2010

 Our legal system recognises the fundamental right of a person to dispose of their property as they wish upon death.

There are however a number of circumstances under which a Will may be contested including:

1. Where the Will has been incorrectly executed or tampered with;
2. Where the Will was made at a time the person did not have the necessary capacity to make the Will or the Will was made as a result of pressure from another person.
3. These actions are commonly known as Testator’s Family Maintenance (TFM) or Part IV Applications.

TESTATOR’S FAMILY MAINTENANCE OR PART IV APPLICATIONS

Where a person has made a Will at a time legally capable of doing so and without undue pressure or influence there is little opportunity of challenging its substance other than through the making of TFM application.

The right of a person to give their property to anyone was seen as possibly being unfair or unjust when the Will maker’s family or others with a special relationship with the deceased would suffer hardship as a result.  The law allows an award to be made out of the estate of a deceased to anyone if inadequate provision has been made for them in their Will.

Timeframe for making an Application

An application cannot be made until a Grant of Probate or Letters of Administration have been obtained and once the grant has been obtained it must be made within 6 months of the date of the grant.  The Court may in special circumstances grant an extension as long as the estate has not been completely administered.

Who is the application made against?

A TFM application is issued against a legal personal representative of the estate (commonly called the Executor when a Will has been made or the Administrator where the deceased left no Will).  The legal personal representative has a duty not to distribute the estate of a deceased until 6 months after the date the grant has been obtained.

Criteria for Success

In the first instance in order to be successful in a TFM Application an applicant must establish that the deceased had a moral obligation to make proper provision for their maintenance and support out of their estate.  It is imperative that an applicant establish an economic or financial need.  A challenge will not be successful merely because the Will was unfair or unjust in its distribution.  A Court will also consider the applicant’s character and conduct and whether they have behaved in such a way as should disentitle them from receiving any additional benefit from the estate.

Costs

Generally speaking the costs of running an applicant’s TFM application and the cost of defending the action are usually ordered to be paid out of the estate of the deceased in their entirety.  Accordingly, there is often very little downside to an applicant pursuing an application in the knowledge that their costs will be covered providing they are not making a frivolous or vexatious claim.  As a result it is common for  claims to be referred to and settled at a mediation hearing which is part of the process.  More often than not a court hearing is not required.

Should you believe that you have been inadequately provided for in a Will at any time you should contact our office to discuss your rights in this regard.