Challenging a Will

In this article we take you through the process of challenging a Will, the focus being on Part IV Family Provision claims.

There are two main types of challenges to Wills:

• Validity Challenge: Where the Will may be invalid in some way, perhaps forged or made under duress or when the Will maker was not mentally capable of making decisions (incapacity).
• Part IV Claim: Where the argument is that the Will maker didn’t make adequate provision for a loved one.

These are approximate; your situation can make a big difference. Prices are current at time of writing.

• A spouse of domestic partner
• A former spouse or domestic partner (depending on circumstances)
• A child of the deceased (biological, step, adopted, or believed to be and treated as the child of the deceased.)
• A registered carer of the deceased
• A grandchild
• A person who was a member of the deceased’s household
• A spouse/domestic partner of a child of the deceased if the child dies within 1 years of the deceased’s death

1. The applicant or more likely the applicant’s solicitor files an originating motion and supporting affidavits with the Supreme Court Probate Division
2. Documents are served on the Will’s Executors (this is to advise them of the challenge and allow them to seek legal assistance)
3. The Executors can either defend the Will as it stands or accept that the challenge has merit and consent to the Challenger’s bequest or negotiate a compromise.
4. Parties attend a compulsory mediation. If a compromise can be found and agreed upon by all beneficiaries the Court may grant such Orders altering the provisions of the Will as agreed upon in the Mediation.
5. If the matter remains unresolved after the mediation then the matter proceeds to a disclosure, evidence gathering and subsequent Court hearing.
6. As with any Court hearing, a decision could be made promptly or further evidence or rule of law clarification could be sought and the matter be heard at a subsequent hearing in the future.
7. If the challenge is successful, then the estate distribution changes and the Challenger is bequeathed money, property or other assets as ordered by the Court.
8. If either the Challenger or the Executor is considered to be unreasonable or the challenge was considered lacking in merit then a costs order may be granted against the Challenger which would cover or contribute to the other parties’ legal costs.

• The relationship between the deceased and the Challenger
• The Challenger’s financial needs and resources
• Any contributions by the Challenger to the deceased’s welfare or estate
• Conduct of the Challenger (e.g. estrangement or neglect)
• Size and types of assets in the estate
• Entitlements and needs of the beneficiaries under the Will
• Moral duty of the deceased to provide for the Challenger
• What would a proper provision for the Challenger given the Challenger’s financial and personal circumstances be, in light of the size of the Deceased Estate and provisions made for existing beneficiaries and their circumstances.

Before doing anything you should seek advice from a solicitor experienced in estate law. Petra Moravek of Grange Lawyers can advise you on your potential eligibility and what your prospects for satisfaction are. We’re honest and forthright with you about this. If we don’t think you have a strong claim then we’ll let you know. Whether or not you want to proceed is up to you.
You might find yourself on the other side of this too. If you’re an Executor of an estate and you believe the Will may be challenged, get in touch as soon as possible. We’ll be able to advise on the merits of the possible challenge, the process in detail and the best way to resolve the matter, whether that’s a negotiated compromise or going through to the Court Hearing.
We are happy to conduct negotiations prior to issuing Court Proceedings and the good news is most matters settle by agreement.