When can a will be contested?

When can a will be contested?

In theory, in Australia a person is free to leave their estate and goods to whomever they wish, and to exclude whomever they wish – unless they have a “moral duty” to provide for someone that they have not provided for.  This “moral duty” is where there is the possibility for wills to be contested.

In practice, in NSW wills are only modified by the court (or contested in the first place) when the estate is of a substantial size. The tricky part comes in determining when there is “moral duty” to provide for another person. It has been made clear that there is a “moral duty” to provide for sick or elderly close relatives, when they would not be able to afford adequate care for themselves.

An example of this occurred in a case where an 80 year old woman died but did not name her 88 year old sister (who lived with her) in the will. The court ruled that the sister should be allowed to live the rest of her life rent free in her deceased sister’s house, and upon her death the original beneficiary would be free to do as they liked with it.

Generally, a person can be said to have a duty to provide for children, partners, dependant grandchildren and dependant parents (as well as other dependant relatives). A person’s conduct during the deceased person’s life can impact the court’s decision, however recently even estranged children have managed to successfully contest wills if the court rules they need the inheritance more than their favoured siblings.

A possible option if you are worried is to set up trusts for people you want to leave money too, and again a lawyer can help. Giving gifts while you are alive is also a good option if your will may be disputed. However, the most important thing is to make a will and get legal advice, both about the will and about other options for making sure your money goes where you want it to.