Contesting a will, or acting as an executor? Where there’s a will, there’s a way (…. to contest!)

13 Apr

The purpose of a will is to ensure an estate is distributed in accordance with the deceased testator’s wishes. But things don’t always go to plan. This article provides some simple explanations about how wills can be challenged after the testator dies, drawn from our own experiences representing both sides in many estate administration disputes.

It may be helpful to explain the most commonly used terms in wills and estates disputes that end up before the court.

A “will” (sometimes referred to more formally as a last will and testament) is any form of document that sets out a person’s wishes, in relation to how their assets and liabilities are to be distributed or otherwise dealt with after the person dies. A will is usually a written document that has been prepared by a lawyer. Although there are many “will kits” available online or at your local post office or newsagent, it is important that your will is drafted properly and meets certain legal requirements. It is also very unlikely that a will kit, or a will obtained for free or for nominal cost (whether online or as part of a promotion) is going to properly reflect your unique circumstances or needs. If you don’t have a properly drafted will, then you should make an appointment to see Shorestone Legal, or any other law practice that specialises in estate matters, and have a properly drafted will completed as part of a comprehensive estate planning meeting.

Although there are strict legal requirements for a formal will, there have been some surprising cases where documents that don’t meet these requirements have still been accepted as a will (called an “informal will”). In one very famous 1948 Canadian case, Cecil Harris scratched his dying wishes into the fender of the tractor he was pinned under, after a tragic farming accident. In 2017, the Supreme Court of Queensland determined that an unsent text message was a will.

Proving an informal will is of course likely to result in expensive legal proceedings, which is why it is always best to have a proper, formal will drafted by an experienced estates lawyer.

The “testator” means the person who has written the will, and whose property and interests (“the estate”) is being disputed. This person has usually died, leaving an estate, by the time the dispute arises. However, in some unusual cases a dispute may arise before a testator dies, for example where the testator has lost capacity as a result of mental disease or infirmity, or an application has been made to the Supreme Court asking the Court to make a will on someone’s behalf. A female testator may also be referred to as a “testatrix”.

If a person dies without having a will, they are said to have “died intestate”.

An “executor” is the person who stands in the shoes of the testator (figuratively speaking) and ensures that the testator’s wishes are carried out, usually in accordance with the will. The testator’s will usually appoints a person as their executor, and it should be someone the testator trusts and knows to be capable of either carrying out their wishes correctly, or capable of engaging and instructing an estates lawyer to do the job. If there is no will, or if the will doesn’t meet the proper statutory requirements, the Court may upon application appoint a person as an administrator of the estate instead of an executor. An administrator’s role is the same as an executor, and the terms “executor”, “administrator”, and “trustee” as often used interchangeably (even though there are some subtle legal differences between the terms).

A “beneficiary” is a person who, as the word suggests, benefits from the will. For example, a person who is to receive part or all of the testator’s estate is a beneficiary. Beneficiaries can receive gifts of property or assets (for example a house, furniture, or cash), but also includes people who are given some form other form of right or interest by the testator in their will (for example the right to live in a property until they die, or receive dividends from an investment).

There are three most common ways a will can be contested.

A will can be challenged on the basis that there is a later will, that overrides the earlier will. This can include a later document written or signed by the testator that, although not a formal will, sets out the testator’s wishes which differ from the earlier, former will. It can also include a photocopy of a later will, the original of which cannot be found, even if the original document for earlier will is the only original document to hand.

A will can also be challenged on the basis that the testator lacked capacity (for example through mental disease or infirmity, or an inability to read or write) when the will was formalised, or that the testator was coerced or forced into making the will. We have been involved in matters where it was alleged that an elderly parent, having made their will many years ago, then makes a new will towards the end of their life that strongly favours one child over another, or a new spouse, in circumstances where there may have been coercion over the testator by the new beneficiary.

In both the above types of estate disputes, an important rule of law is that if the last known whereabouts of an original is in the hands of the testator, and the original cannot be found, then the law assumes that the testator destroyed the original document with the intention of revoking that will.

The most common way to challenge an estate is a family provision claim. This is a statutory claim, based on section 41 of the Succession Act 1981 (Qld.). That section states that if the deceased dies without making “adequate provision” for a spouse, child, or dependant, the Court can make an order giving some or all of the estate to the spouse, child, or dependant.

A spouse can include a de facto or civil partner but only if the deceased and the claimant were continually living together on a genuine domestic basis for at least 2 years immediately before death. In some limited circumstances, a spouse can also include a former spouse, even if they are divorced at the time of death. A child also includes an adult child.

If a family provision claim is made by a dependant (who is not a spouse, former spouse or child of the deceased), the Court will consider the extent to which the dependant was being maintained or supported by the deceased before their death, and the need for the continuance of that maintenance or support, before intervening.

The Court will approach an application for family provision in two steps, which have been set out by the High Court of Australia in Singer v Berghouse [1994] HCA 40:

Firstly, the Court will determine, objectively and in all the circumstances of each specific claim, whether “adequate” provision has already been made; and
Secondly, and only if it has first decided that adequate provision has not been made, the Court will determine whether any provision or further provision should be made having regard to the size of the estate, other beneficiaries or claimants, or the wishes of the testator if there is a will.

A claim for family provision is not limited to just challenging wills. A claim can also be made against the estate if there is no will, and the estate is being distributed in accordance with the laws of the Succession Act 1981 (Qld.). If a person dies without a will, the Succession Act sets out clear rules for how the estate should be distributed amongst the deceased’s family, and these rules may not always make adequate provision for a spouse, former spouse, child, or dependant depending on their specific needs and circumstances.

If a family provision claim is made, there are steps that must be followed by both the claimants and the executor or administrator of the estate. These steps include preparing and filing specific Court orders, advising all beneficiaries of the estate and any other potential claimants, liaising with all parties to ensure the matter proceeds according to law, and attempting to mediate the dispute before requesting a hearing before the Court.

In most claims, the claimant will be known to the Court as “the Applicant” and the estate will be “the Respondent.” Other claimants and beneficiaries may also be added to the proceedings, if the claim may affect their interests in the estate or they too consider that they have not received adequate provision.

Before challenging a will, it is important to realise that the Court is likely to place significant weight on the wishes of a testator. This principle was enunciated in Domanti & Anor v Domanti [2020] QSC 360 (at paragraph 226):

“ … A person has a right to dispose of their property by will as they see fit and a court will only interfere if a testator has abused that right. Considerable weight must be given to the testamentary wishes of a capable testator.”

A potential challenger should also be aware that, contrary to popular belief, there is no golden rule that everyone’s legal costs will always be paid out of the estate.

Shorestone Legal has extensive experience acting for both claimants and the estate in these types of disputes. If you have any questions about estate administration, challenging a will, or making a claim against an estate, contact Shorestone Legal as soon as possible. In many areas of estate law there are very strict time limitations.