Claims Against Wills

There are two main ways that you can make claims against wills. 

Invalid Will

The first way to dispute a Will is to claim that a Will is invalid

It may be invalid because you believe someone didn’t have capacity anymore when they signed the Will.

Or it could be invalid because there was undue influence from someone else inserting their own wishes, and trying to make someone do a Will to benefit themselves.

If you have doubts about a Will, you need to get in early. Because it’s better to not allow the will to get probate, than try to claim after probate is already granted. 

Further provision

Far more common, the other way to claim against a Will, is when someone feels like they have not had sufficient provision made for them in the Will. 

For claims against wills of this form, they can be made after the grant of probate, for a six month period. 

In Victoria, this used to be open slather.

However, in 2015, the law in Victoria changed, and those eligible to make a claim has narrowed right down. 

There are certain categories of people who are allowed to make a claim against a Will.

If someone’s not within those categories, then no, they can’t make a claim. 

Those categories, broadly, are spouses (including a spouse who you’ve separated from that you haven’t had a financial settlement with), a de facto, children, stepchildren, someone who’s financially dependent on you, or someone living in your home.

Quantum

If the claimant falls within one of those categories, then the question becomes: what was the obligation to provide them with something in the first place? 

This is the more difficult question. 

Adult children are a common example: what’s the obligation of a parent to an adult child? 

An adult child is an eligible person, but  what should you provide for them? 

In fact, adult children who are able-bodied are supposed to be able to go out and look after themselves, and there should not be an obligation on their parent to look after them.

So, the Court’s getting stricter and stricter about adult children, particularly if an adult child has actually done fairly well financially, also has a second income in the home, doesn’t have any medical problems, your obligation to your adult children is very little. 

If you have an adult child who hasn’t done well, who is sick, who is disabled, who has potentially been separated and has to start again, you have a greater obligation to make sure that they’re on their feet. 

What is your extent of the obligation? Well, your obligation is certainly not to make sure that they have a house that doesn’t have a mortgage on it.

Your obligation to your spouse does; you need to make sure your spouse is housed, and has a nest egg. But your obligation to your children is not the same. 

Estate planning

When people come to me to do their estate planning, and we go through this complex process of thinking about who should get what, and if there is an estranged child, should they get anything at all? 

It comes down to a person’s preference ultimately, and how they want to deal with the possibility of a claim against their will. 

How we try and support the Willmaker is by making sure there is enough evidence as possible, should that excluded child come forward to make a claim. It’s often better to exclude them than to leave them a small amount. And if you do exclude them, you need to leave enough evidence for the executor to defend that claim, should it come. 

The difficulty we face is when there is a claim against a will, there is often no evidence from the deceased person. So the better you can prepare, the better chance your executor has to defend a claim.

Thinking about it from an estate planning perspective is very important. 

There are a lot of myths and things out there, old stories by people who have known about claims in the past. But the law changed into 2015, so those horror stories may no longer be relevant. And if your Will is old than 2015, then updating it would be ideal.