As a Lawyer working in the area of estate administration and Will disputes, I often get asked the question “Why bother making a Will if someone can challenge it?”.

The answer to that question is not as straight forward as it should be, but that is so often the case with the law.

Your Will is your written statement as to how you wish your life’s work to be distributed, most often to family, friends and charities.  Unfortunately sometimes not everyone is satisfied with the terms of a loved one’s Will.

Making a Will can be quite confronting.  It means having to deal with your own mortality.  A lot of us are not very good at that, so we put it off, sometimes for too long - with tragic consequences.  It may also mean having that difficult conversation with your partner or other family member.

As a result, many people do not have a Will or their Wills are hopelessly out of date.  This can happen when the Will maker’s circumstances, personal, financial or otherwise may have changed.  For example there may have been a second marriage or relationship that has not been considered, additional children have been born but not provided for or some beneficiaries may have already died or are not appropriate to be included in the Will any longer.

The Succession Act of Queensland (1981) limits the unfettered right of individuals to dispose of their estate exactly as they please.  Why?  Because to do otherwise could lead to situations that are grossly unfair on a reasonable assessment of the facts and circumstances of the deceased’s personal, living, financial or other arrangements  at the time of death and prior.

Eligible person’s are entitled to dispute a Will for further and better provisions out of the estate of the deceased for what the Succession Act describes as “proper maintenance and support”.

The law in Queensland currently defines eligible persons as:

• A spouse of the deceased, (including a same sex or de facto spouse that falls within the definition in the Succession Act and the Acts Interpretation Act “AIA”, ie including that the person and the deceased had lived together as a couple on a genuine domestic basis within the meaning of the AIA, for a continuous period of at least 2 years ending on the deceased's death;
• A child (which includes a step child or adopted child) of the deceased; and
• A dependant of the deceased (being a person maintained or supported by the deceased person prior to their death).

There has been much case law about what “proper maintenance and support” means. This usually results in a detailed assessment of all the relevant facts and circumstances and each case is assessed on its merits.

Before commencing a claim, a very careful assessment of the merits of the claim are required. This will include an objective assessment of a variety of issues including:-

• The size of the estate;
• The Will maker’s obligation to the applicant, moral and otherwise;
• The applicant’s means and financial responsibilities;
• The applicant’s dependency on the deceased;
• The applicant’s support of the deceased;
• The needs and health of the applicant;
• other competing claims;
• and more.
  

Applications of this nature are usually settled without the necessity of a Court hearing. The rules of the Court assist with the timely management of the matter and include a compulsory mediation after the exchange of affidavit and other material between the parties, normally consisting of the executor, the applicant and the other beneficiaries.

The costs of the applicant and the executor of the Estate are normally paid out of the Estate but this is a discretionary matter for the Court and there are no guarantees. An applicant that commences a spurious or vexatious claim risks an award of costs against them.
There are time limits for disputing a Will and making a claim for provision out of the estate of the deceased.  Notice must be given to the executor within six months from the date of death and an application must be made to the Court within nine months from the date of death.

The validity of a Will may also be disputed if there is proof of a lack of testamentary capacity on the part of the Will maker or there is a claim that another person has exercised undue influence on the Will maker and their Will does not reflect their true wishes.
The message you should take away after taking the time to read this article is to ensure that your Will is up to date and reflects your wishes of how you want to distribute your estate if you were to pass away tomorrow. 
But your Will is only part of it as it takes effect after you die.  You should also ensure that you have an Enduring Power of Attorney so your attorney can act on your behalf if you cannot speak for yourself whilst you are still alive…… but that is a topic for another day.

McColm Matsinger Lawyers is a progressive firm of solicitors ready to meet the more sophisticated requirements of this new century." ==>> McColm Matsinger Lawyers