Who can challenge my will?
Many clients assume they can, on death, leave their assets to whomever they choose. They are dismayed to learn, when instructing a lawyer to prepare their will, that it can be challenged.
Until recently, anyone could challenge a will, whether or not married or related to the will-maker, if they could show that the will-maker had a “responsibility” to provide for them. This was subject to criticism as it was thought to allow opportunistic claims, with legal costs often paid out of the estate, even if the claim was unsuccessful.
The good news for will-makers is that recent changes to the law (as from 1 January 2015) now limit the particular categories of person who may challenge. These include:
- A married or de facto spouse of the will-maker;
- A former spouse who could have brought a family law claim if the will-maker were still alive;
- A child or step-child.
There are some additional categories which apply only if the Court is satisfied that the person was wholly or partly dependent on the will-maker for their “proper maintenance and support” (ignoring any government benefits the person is receiving):
- A grandchild of the will-maker;
- The spouse of a child of the will-maker if the child dies within 1 year of the will-maker;
- A member of the same household as the will-maker.
A person qualifies as a de facto spouse if living with the will-maker as a couple on a genuine domestic basis (irrespective of gender) and either, they had done so continuously for at least 2 years before death, or they had a child together still under 18 years of age.
If a person falls into one of the above categories, they may be eligible to bring a claim. However, they will only be successful if the Court finds that, when the will-maker died, had a “moral duty” to provide for the person’s proper maintenance and support, and that the will fails to do so.
In deciding how much to award, the Court must take into account the degree of moral duty, and failure of the will to provide. The Court must not award a person more than is necessary for their proper maintenance and support.
For a child of the will-maker who is not under 18, nor a full time student aged 18 to 25, or does not have a disability, the Court must take into account the degree to which the person is “not capable, by reasonable means, of providing adequately for their own proper maintenance and support”.
These changes will apply to the estates of persons who pass away from 1 January 2015 onwards.
The new law will hopefully provide greater certainty and clarity, but will-makers may still wish to protect their estate from potential claims by certain persons falling within the new categories. For example, spendthrift adult children who may squander the inheritance; second spouses who have not contributed to the will-maker’s assets and the will-maker prefers to leave assets to children of the first marriage; or children who have fallen out with the will-maker.
There are strategies available to minimise claims against your estate by persons you consider unworthy. Feel free to contact us if you would like more information. Now might be a good time to update your will.
Author: Kent Mallinson