Where there is a Will there is a way – To Challenge the Will?

I have one particularly gloomy client.  He reminds me of the old t-shirt caption: “They said cheer up things could be worse, so I cheered up and sure enough things got worse!” 

He recently bemoaned: “what is the point of having a Will if it can be set aside by a court?

It is true that an act known as the Family Provisions Act enables certain persons to challenge the Will of the deceased.  However, as I said to Old Gloomy, there are limitations:

1.  Firstly, the only people who can challenge a Will are the following:

(a)        the widow or widower;
(b)        a divorced spouse of the deceased in certain circumstances;
(c)        a child of the deceased;
(d)        a grandchild of the deceased in certain circumstances,
(e)        a parent of the deceased whether the relationship is
             determined through m
arriage or 
adoption or otherwise;
(f)        a de facto widow or widower of the deceased.


2.  A basic feature of the law is that the court can only make an order for a provision from a deceased estate for a family member if the deceased was under a moral duty to make a provision for the applicant from their estate.

3.  The applicant can only obtain an order if they are in financial need.  Thus, an applicant who is in a reasonably good financial position would not succeed unless it was an unusually large estate.

4.  The estate must be large enough so that an award can be made without being unfair, in all of the circumstances, to the other beneficiaries and/or applicants.

5.  The application must be made within six months of the grant of probate of the deceased’s Will or letters of administration of the estate.  The court has the power to extend the time in which to bring the application in special circumstances.

6.  The relationship between the applicant and the deceased is an important factor.  Poor conduct by the applicant towards the deceased can be a reducing or even disqualifying factor.  Conversely, good conduct towards the deceased by the applicant can enhance their entitlement.

Two recent cases in which I have been involved give some indication as to how the law works in practice. 

The first was a case of an octogenarian farmer who was an old style male chauvinist.  He was survived by a widow, an adult daughter and an adult son.  Neither child had worked on the farm as an adult.  The farmer left almost all of his $3 million estate to his son, giving his widow the right to reside in the homestead on the property.  This right to reside was of little value to her as the property was a long way from the country town where she needed medical assistance.  Clearly, the farmer had a primary duty to his widow and he breached that moral duty.

We succeeded in settling the matter on the basis of obtaining about $1.5 million for the widow.  I am sure that most people would agree that the widow had every right to challenge the Will.

In the second example, an elderly lady died leaving an estate comprised, in the main, of her house, worth about $500,000.  She had four adult married children who were all in average and similar financial circumstances. 

The elderly lady left one half of the estate to her youngest child, a daughter who, to her financial detriment, had spent some years looking after the elderly lady as her health was deteriorating.  The other half of the estate was left equally between the other three children.  One of the other children wished to challenge the Will, claiming that all four children should be equal.  On the basis of case law, our advice was that given the special relationship between the mother and the caring daughter, the size of the estate and the fact that all four children were in similar financial positions, we did not believe that our client would succeed in a challenge.

The courts have made it clear that it is not their function to achieve a rewrite of a Will to create equality amongst siblings, nor to placate hurt feelings.