Challenging a Will

What grounds are there for challenging a will?

There are many reasons why you might be able to challenge a will. For example:

1. There are doubts about the testator's mental capacity at the time he or she made the will.
2. Someone might have pressured the testator into leaving their assets to certain people.
3. There are suspicions of forgery.
4. There are doubts about whether the will was signed and witnessed properly.
5. You are doubtful about whether the testator understood the effect of a clause in the will.
6. There is concern that the testator has not provided adequately for dependants.
7. A later will comes to light.

How do I go about challenging a will?

There are a number of different procedures for challenging wills in New South Wales, depending on the reason.

1. It might be possible for you to make an application under the Family Provision Act. This legislation gives the court some discretion to allow certain persons to have access to some of the deceased's estate where a testator did not make adequate provision for the proper maintenance, education and advancement in life of those persons.
2. If a grant of probate has not yet been made, it might be possible to lodge a caveat (Insert definition of caveat). There are different types of caveats which perform different functions.
3. After probate has been granted, it is possible to approach the Court to have this revoked in limited circumstances.

APPLICATIONS UNDER THE FAMILY PROVISION ACT

The Family Provision Act 1982 gives the Court some discretion to make provision for certain persons where the testator or person who made the will failed to do so. An application under the Act is a challenge to the terms of a will because it calls for a different distribution of the deceased's estate than was made in the will.

Who can apply?

There are four categories of people who are eligible to apply under the Family Provision Act:

1. The spouse or de facto spouse of the deceased
2. A child of the deceased
3. A former spouse of the deceased
4. A person who was at any particular time wholly or partly dependent upon the deceased and who is a grandchild of the deceased or who was at any time a member of the deceased's household.

• Spouse or de facto spouse

An applicant under this category must show that at the date of the death of the testator they were

* Validly married to the deceased; or
* Living with the deceased on a bona fide domestic basis.

As it stands same sex partners would not fall within this category of eligible persons.

In deciding whether there is a "bona fide domestic basis" the court will look at the circumstances of each case such as whether there are arrangements for mutual support, whether there is a sexual relationship, whether the couple owned property together, and what arrangements existed for performing household duties.

• Child of the deceased

This category includes legitimated, adopted or ex-nuptial children of any age but does not include step-children.

• Former spouse

A former spouse is eligible to apply if they can show that they were validly married to the deceased and that they were divorced or that the marriage was annulled during the deceased's lifetime. The fact that a former spouse has remarried does not prevent them from making an application.

• Other persons dependent upon the deceased

This category permits applications by other people who can show that

- That were totally or partially dependent upon the deceased at any time (not necessarily at the time the deceased died); and
- Except in the case of grandchildren that they were a member of the deceased's household at any time.

An applicant in this category would demonstrate the requirement of "dependence" by showing that the deceased made a contribution in time or money towards their needs on a settled basis. A mere emotional relationship would not be sufficient.

Matters considered by the Court in Determining Entitlement

"Conditions Precedent"

Before the Court can exercise its discretion under the Act, the applicant needs to overcome one or possibly two "conditions precedent".

1. All categories of applicants must satisfy a general precondition that at the time of the application there has been inadequate provision for the proper maintenance, education and advancement of the applicant.

Therefore there are two main elements to this precondition.

- "adequacy" which related to the needs of the applicant
- "proper" which relates to all the circumstances of the case such as the wealth of the deceased, the means of the applicant, the conduct of the applicant towards the deceased, and whether the applicant is able-bodied.

2. Applicants in the categories of "former spouse" and "other persons dependent upon the deceased" also have to satisfy a second precondition: that there are factors which warrant the making of an application. The Act does not specify what those factors could be but the Court looks for anything which might mean that there is a special relationship between the applicant and the deceased which would give the applicant a claim. For example:

- A housekeeper who has been fully paid for his or her services would not be able to satisfy this special condition;
- A former spouse who obtained a proper property settlement after divorce might not have a claim.

The Court's Discretion

Once an applicant has shown that they fit into a prescribed category of persons eligible to apply and they have satisfied any preconditions to the court's jurisdiction, the Court can then exercise its discretion to order that provision be made out of the estate for the maintenance education or advancement in life of the eligible person.

The Act sets out a number of factors which the Court can consider in determining what provision, if any, ought to be made in favour of the applicant. These include:

* Any contribution the applicant made to the acquisition of property by the deceased or the welfare of the deceased. These contributions need not have been in the form of money.
* The character and conduct of the applicant before and after the death of the deceased person.
* The circumstances existing before and after the death of the deceased.
* Any other matter. The Court could consider for example, the applicant's present and reasonably anticipated need, the size and nature of the estate, the nature and relative strength of the claim on the testator, whether the applicant has a disability and the deceased's reasons for the gifts made under the will.

What if the deceased gave away property before they died?

Sometimes a person will attempt to stop someone getting hold of their property through a Family Provision Act application by giving it away before they die.

If this happens, the Act now enables the Court to make an order that certain property forms part of what is called the "notional estate" which means that the property can be the subject of an order by the Court under the Act. For property to be designated "notional estate" there are two main requirements:

1. The property must have been the subject of a "prescribed transaction" entered into by the deceased for the purpose of avoiding a claim for provision by dependents. Whenever ownership of property has passed to another person without them paying the proper price in money or money's worth, there will be a "prescribed transaction".
2. The transaction must have taken place within a certain time prior to the testator's death.

If the transaction was one which was structured so that it didn't take effect until the deceased died then the Court looks upon it as being a "will substitute and in that case it doesn't matter when the transaction occurred, provided it was after 1 September 1983 when the Family Provision Act came into force.

If the transaction was a straight out gift in the year before the deceased died, the Court may make an order that the property given away should form part of the notional estate provided that:

1. at the time of the gift the deceased had a moral obligation to make adequate provision for an eligible person; and
2. that moral obligation was greater than any moral obligation to make the gift.

If the transaction occurred between one and three years before the death the applicant has to prove that it was entered into with the intention of defeating a potential application under the Act. This is difficult to prove.

How do I make an application?

The usual period within which an application must be made is 18 months from the death of the deceased This time can be extended or restricted by the Court.

Applications can only be made after there has been a grant of probate. A grant of probate gives the executor authority to act. After obtaining probate an executor will be recognised at law as the person who has the right to deal with the assets of the deceased after death. If the executor has not applied for probate within 18 months it is possible for a potential applicant under the Family Provision Act to do this.

Family Provision Act applications are made to the Equity Division of the Supreme Court by filing a summons.

The person making the application also files an affidavit which should include numbered paragraphs dealing with information about:

1. The age, occupation and marital status of the applicant.
2. The date of the deceased's death and his or her age at that date.
3. Where there is a will, the date and contents of the will and the date probate was granted.
4. If there is no will, a statement to this effect and the date of the Grant of Letters of Administration (this is equivalent to a grant of probate where there is no will).
5. Brief details of the extent and situation of the deceased's assets.
6. Details of the applicant's relationship to the deceased and to the present beneficiaries of the deceased's estate.
7. Details of the circumstances giving rise to the applicant's moral claim for provision and where applicable information about the moral claims of existing beneficiaries. This should include evidence of any obligation the plaintiff has to care for others.
8. Information about any acknowledgements the deceased made that the applicant did have some moral claim on the deceased.
9. Details about the financial situation of the applicant at the date of the deceased's death and at the time of the affidavit.
10. Any information available about the financial situation of the existing beneficiaries.
11. Where applicable the present and future health of the applicant.
12. What the applicant is seeking.

We recommend that you seek legal advice in preparing the documentation required to make an application and to ensure that the correct procedure is followed. Other important procedural steps include:

- Service of a copy of the summons on the executor or administrator of the estate.
- Service of a prescribed notice showing who in the opinion of the person making the application, is or may be an eligible person under the Family Provision Act.

CHALLENGING WILLS

To understand the process it is important to consider the usual steps that are taken in dealing with wills.

In some but not all cases, the executor named in the will must obtain probate of the will by making application to the relevant court. A grant of probate gives the executor authority to act. After obtaining probate an executor will be recognised at law as the person who has the right to deal with the assets of the deceased after death.

The usual procedure is that the executor lodges certain documents in the Supreme Court with the Will. If the Court Registrar is satisfied that the documents are in order and that the will is formally valid, a grant of probate is made "in common form".

This may be contrasted with a grant "in solemn form". This type of grant is made as a result of contentious proceedings that is proceedings in which the Court determines the validity of a will after hearing the evidence. Contentious proceedings arise where there is an application for a grant in common form to be revoked or as a result of a caveat.

From this you can see that there are two main ways to get the Court to hear your side of the story:

* If a grant in common form has not yet been made you can lodge a caveat.
* If a grant in common form has already been made you can apply to have it revoked.

Caveats

In simple terms, a caveat is a warning. It is an entry made in the books of the Court Registry to prevent the Court from issuing a grant of probate without first notifying the caveator or person who lodged the caveat.

There are different types of caveats to be used in different circumstances:

1. Caveats seeking proof of the will in solemn form. These would be appropriate if there were concerns about forgery of the will or doubt about whether the will had been properly signed and witnessed. This type of caveat would also be used where you want to defend a will which is being challenged by someone else. These types of caveats are rarely used in practice.
2. General caveats. These would be appropriate if you wish to challenge a will where there are:

* Doubts about the testator's capacity to make a will.
* Doubt about the identity of the intended beneficiary.
* Doubt about the testator's understanding of the content of the will or its effect.
* Possibly, where there are allegations of duress or someone exercising undue influence over the testator when he or she made the will.
* Possibly where there are concerns about forgery of the will or whether the will was properly signed or witnessed.

3. Caveats forbidding grants in respect of informal documents. In some circumstances the Court has the power to treat informal documents as wills even though they have not been properly signed or witnessed. This third type of caveat prevents a court from making a grant in respect of such documents without first hearing from a caveator about whether those documents should be treated as a will.

Who can lodge a caveat?

A person who wished to lodge a caveat must have "an interest in the estate". This means that they have to stand to lose or gain something as a result of the Court hearing about the will.

How do I lodge a caveat?

This document is not only lodged with the court but also served on any person who the caveator knows is making or intending to make an application for probate.

A caveat remains in force for six months unless the Court orders otherwise. It is possible to apply for the Court to extend this time.

A caveat may be withdrawn at any time with the permission of the Court.

What happens next?

Where a caveat is in force, a person who is applying for probate is faced with three options:

1. To wait until the caveat lapses. Usually there is little point in doing this because a fresh caveat can be lodged.
2. Commence contentious proceedings.
3. Apply for an order that the caveat cease to be in force. This would be the appropriate procedure if the caveator does not have the requisite "interest in the estate" (See above "Who can lodge a caveat?") or if the person seeking probate is satisfied that the allegations behind the caveat cannot be established by the caveator.

If you are a caveator you should seek legal advice about the technical legal steps which will follow. It is important that you are in a position to give evidence about your interest in the estate and about the allegations you are making, otherwise you could lose the opportunity to have the Court hear your argument and costs could be ordered against you.

REVOKING A GRANT OF PROBATE:

If a grant of probate in common form has already been made the Court has the power to revoke that grant. An example of where you might wish to apply for revocation of a grant is where a later will is found after probate of an earlier will has already been granted. The grounds for revoking a will are very limited. If you have concerns about a will the appropriate time to act is before a grant of probate has been made.

If you wish to have a grant revoked we recommend that you seek legal advice about the technical legal steps involved and the documentation required.

On what grounds could I apply for a grant of probate to be revoked?

There are three main grounds on which a grant of probate can be revoked:

1. Where the grant has been made to the wrong person such as where a later will is discovered.
2. Where the grant is irregular such as where a grant was made even though there was a caveat in force.
3. Where the grant has become ineffective such as where the executor has become mentally ill.

Who can apply to revoke a grant?

Any interested party can apply for a grant to be revoked. Such persons might include:

1. Persons who would be entitled to the estate if there was no will (the law sets out certain categories of persons who are entitled to the estate if the deceased dies without having made a will)
2. Beneficiaries named in the will admitted to probate or a previous will
3. An executor named in the will.

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