How does a Judge make a decision when someone is challenging a Will?

It is difficult to listen to the radio, or read a newspaper these days, without hearing or reading about someone challenging a will because they have been left out of the will completely or they have received less than they wanted or expected.

This area of law is one of the largest growing areas of litigation. In the past, wills were often challenged on whether the deceased person had capacity to make the will, or whether someone influenced the deceased person in a certain way. More recently, most estate litigation has been about unhappy family members wanting more of the estate assets.

Any spouse (including a de facto spouse, and an ex-spouse), child or person who was dependent on the deceased, can make a claim for provision from the deceased’s estate.

When a judge makes a decision about whether the person making a claim is successful or not, the following things are taken into account:

  • The size of the estate.
  • The financial position of the person making the claim, including their assets and liabilities, income and expenses.
  • The financial positions of the other beneficiaries in the will.
  • The nature of the relationship between the person making the claim and the deceased.
  • Any contribution (financial or otherwise) that the person making the claim provided to the deceased person during their lifetime, and vice versa.
  • Any medical conditions and ongoing health needs of the person making the claim and of the other beneficiaries.

The judges in this jurisdiction rely on cases already decided as guidelines, however the judges still have a significant amount of discretion about how much a person making a claim is given.

Even though judges have discretion in the amount they award, one thing they all agree upon is that this area of law is not about equality. A judge will not make a decision to divide an estate equally between family members because this jurisdiction is not about making things equal – it is about whether the deceased person made adequate provision for the people in their lives.

If you want to discuss your will in light of the information above, or if you have been left out of a will and want to get some advice about what you can do, please contact our office so we can help you.


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