In Parts 1 and 2 of this article we discussed the vital importance of making a will, and some of the key information that you may wish to include in your will. In Part 3, we will be exploring some of the most common ways that a will may be challenged, with a particular focus on recent legislative changes to what are known as Part IV applications.
How can a will be challenged?
There are two differing ways in which wills are usually challenged. Firstly, it can be argued that the will is not valid. If this is the case, it is usually for one of the following reasons:
- The deceased party was unduly influenced by another party when making their will;
- The deceased party didn’t sign their will;
- The will was tampered with or not executed properly;
- The deceased did not have the mental capacity to understand their will;
- The deceased did not know the contents of their will;
- There was a subsequent will made that invalidated the first or a dispute as to which is the most current will.
While popular culture suggests most will challenges fall under one of the above categories, as with many things that you see on television or read in a novel, this is actually a misrepresentation of the reality. The vast majority of challenges to a deceased individual’s will are made under what is known as a ‘Testator’s Family Maintenance’ claim (or a Part IV application). This generally occurs when when the will itself is valid, but an individual who believes they were dependent upon the deceased party (before their death) then claims that they have not been provided adequate provision under the will, and seeks a greater share of the estate.
Testator’s Family Maintenance claims
Until recently, Part IV of the Administration & Probate Act 1958 (Vic) was the sole legislation that governed the process by which an individual could effectively appeal against their share of assets (or lack thereof) under a will. By pursuing a ‘Testator’s Family Maintenance’ claim, the claimant can apply to have the Court grant them a greater share of the assets from the estate. The legislation was roundly criticized for being too broad in scope, allowing anyone to make a claim that could show the deceased individual had “a responsibility to provide for his or her maintenance and support.” This meant that cousins, siblings, friends, parents and even nieces and nephews could all challenge for a greater share of the estate. Due to the legislation not being targeted towards any particular class of individuals, there were a large number of frivolous claims by fringe relations of the deceased. This had the effect of clogging up the Courts with Part IV applications, and also had a detrimental effect on the intended beneficiaries to the estate, as considerable chunks from the asset pool were eaten away by legal proceedings.
In order to address this issue (among others), the Justice Legislation (Succession and Surrogacy) Act 2014 (Vic) was drafted and brought into operation in 2015. Under the new legislation, only the following claimants may bring a Testator’s Family Maintenance claim:
- A domestic partner or spouse of the deceased at the time of the deceased’s death; or
- A child (including adopted or step child) of the deceased, if they-
- Are under 18 years of age;
- Have a disability;
- Are between 18 and 25 and studying full-time; or
- A spouse or domestic partner of a child of the deceased; or
- A former spouse or domestic partner of the deceased (if a property settlement has not been reached at the time of death); or
- A grandchild of the deceased; or
- A member of the household of the deceased (including in the past or would have been in the near future); or
- A registered caring partner of the deceased; or
- A person who has been treated as (and believed they were) a natural child of the deceased.
As can be seen from this list, there are still a substantial number of categories in which one may apply for further provision under a Testator’s Family Maintenance claim, but the more restrictive nature of the updated legislation has resulted in less frivolous claims being pursued. Furthermore, the new legislation included some additional factors that may be considered by the Court when deciding a Testator’s Maintenance Claim.
The factors that will be considered by the Court in considering a TFM claim
Whether or not the Court will find that the deceased had a ‘responsibility’ to provide for the claimant is subject to a number of factors, including:
- Whether the deceased had a moral duty to provide for the claimant. This takes into account the contents of the deceased’s will, past interaction between the claimant and the deceased, and any other evidence regarding the deceased’s intentions of provision for the claimant;
- Whether the estate has already made adequate provision for the claimant;
- Whether the claimant is capable of providing for himself or herself;
- The effect the claim will have on other beneficiaries under the will.
Ultimately, while the Court usually follows the above considerations, it should be noted that the updated legislation has also allowed for complete discretion on how much weight (if any) the Court places upon any of the above factors.
Do the recent changes to the law apply to my will?
The changes to Testator’s Family Maintenance claims came into effect on 1 January 2015. Accordingly, the TFM provisions apply to every individual who dies after this date.
The recent updates to the legislation governing Part IV applications have served to limit the classes of people that can make a Testator’s Family Maintenance claim, but have given the Court a wider discretion to weight the factors they deem of importance in determining a claim. Therefore, it is of particular importance that individuals creating a will keep in mind how these laws are intended to operate, particularly in the event that an individual is considering leaving someone out of their will that would fall into one of the classes detailed above. It is also increases the importance of including as much detail as possible in an individual’s will with regard to his or her reasoning (ie, why they are choosing to leave more of their estate to one child rather than another.)
If you would like to make a will, feel you have been underprovided for in a will, would like to make a Testator’s Family Maintenance claim or have any questions about this article, please get in contact with us on 03 8877 6888.
To read Part 1 of this article for more general information about why it is essential to have a will, click http://www.mahons.com.au/news/2016/5/11/wills-part-1
To read Part 2 of this article for some guidance on what should be included in a will, click http://www.mahons.com.au/news/2016/5/12/what-information-do-i-need-to-put-into-my-will
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.