Who can challenge a Will? Fireproof your Will with a Considered Person Clause

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Who can challenge a Will?

Each States’ Family Provision Act sets out who can challenge a Will 

Courts are reluctant to interfere with your Will. However, legislation exists in all Australian States and Territories. They enable certain people to apply to the court for ‘provision’. Or if they got something in the Will then they seek a ‘further provision’. This is from your deceased estate. They only win if they can prove you didn’t provide ‘adequate provision’. This is for the proper maintenance and support of the applicant. But who can challenge a Will?

Who can challenge a Will?

In most Australian jurisdictions, the following people can challenge a will:

  • legal spouses, including divorcees from a spouse, that are receiving maintenance
  • de facto spouses. Courts look at each case with fresh eyes. They look at the relationship. Was the de facto ‘maintained’? Was the de facto part of the deceased’s household? Did the deceased have a moral responsibility to that person? Great care is taken when applying these standards. Further, the criteria for de factos varies from jurisdiction to jurisdiction
  • children of the deceased of any age. The ability of stepchildren to apply for family provision varies from jurisdiction to jurisdiction
  • grandchildrenWho can challenge a Will

The courts have substantial powers to alter a Will’s original distribution. This is after considering the individual circumstances of each applicant. The court decides whether a distribution failed to make adequate provision. This is for the proper maintenance, support, education or advancement of the applicant. The courts consider the “moral duty”.

What is the “moral duty”?

Consider the “moral duty” in these 2 cases, Vigolo v Bostin (2005) 79 ALJR 731 and Lloyd-Williams v Mayfield [2005] NSWCA 189.

Vigolo was the son of a wealthy farmer. After a dispute, he and his father signed a deed. Vigolo was compensated for the value he had added to the farm. The father died. The father’s will made no further provisions for him. He challenged the Will under the relevant State act. He contended that he had a “moral claim” arising from previous business and family dealings. Vigolo and his wife already owned substantial assets. The claim was considered against obligations and gifts his father made to his 4 siblings. The High Court held that he was already left with adequate provision. This was for his proper maintenance and advancement in life. The challenge was rejected. The Court saw Vigolo as greedy.

When children fight

In Lloyd-Williams v Mayfield, Ms Mayfield was the daughter of Mr Stewart, who died without leaving a will. She was entitled to a percentage of her father’s estate under the intestacy laws. However, most of Mr Stewart’s wealth was in assets jointly owned with his second wife. She only received a few thousand dollars while the wife received all the assets that were jointly owned. The wife died shortly afterwards leaving everything to her niece (Ms Lloyd-Williams). The estate was worth over $8 million. Ms Mayfield challenged the wife’s will, claimincan your mistress and wife challenge your willg that she was entitled to some of the jointly owned property. At trial and on appeal, the court agreed and awarded her $850,000.

Can you reconcile the two cases?

In Vigolo, the court believed that the applicant had already received a substantial provision during the testator’s life. The estate of the deceased was substantial. Even though, the assets of the competing beneficiaries outweighed the needs of Vigolo. In Mayfield, no testamentary promises were made. Nevertheless, the estate was large and the only competing beneficiary received a considerable proportion of the estate.

NSW is special

New South Wales has ‘notional’ estates. Your ‘estate’ assets include assets you transferred for less than market value three years before you die. This includes assets over which you controlled. Therefore, Family Trust assets are caught.

NSW also has the widest group of people who can challenge your Will:

  • current and former wife and husband
  • child
  • wholly or partly dependent and at any time a member of the same household
  • a grandchild wholly or partly dependent
  • a close personal relationship at the deceased person’s death
  • de facto at the time of death  including “same-sex” (section 21C Interpretation Act 1987 including interstate relationships)

NSW Case: Rakovich v Marszalek [2020]

Even in NSW, family provisions claims are normally from family: spouses and children. But ‘friends’ can challenge. See the case of George Rakovich v Marszalek [2020] NSWSC 589.  In this case, the friend cared for the dead person as if they were family.

George is like a son

Horst Marszalek is a bachelor. He has no wife or child. He dies with no Will. Each Australian States enforces a Will on dead people that do not have a Will. These are intestacy distributions. The closest relatives were two nieces and two nephews. Marszalek never met them.

Marszalek, however, has a friend: George Rakovich.

Marszalek treated George like a son. It is a relationship of ‘mutual dependence’. As Marszalek got older his defacto son looked after him.

But George is not related to Marszalek!

Marszalek dies. George makes a claim under s50(1) Succession Act 2006 . George seeks an entitlement to Marszalek’s estate. But is he an ‘an eligible person’? The Court asks:

  • Is George an ‘eligible person’?
  • If Marszalek had of made a Will how much would George have got?

What does it take to be an eligible person?

The Court looks at George’s:

  • dependence upon Marszalek
  • nature of George’s relationship with Marszalek

George lived with his defacto dad. George relied on Marszalek for housing, emotional care and financial support. George was an eligible person under s57(1):

  • George was ‘wholly or partly dependent upon’ Marszalek: s 57(1)(e)
  • George is ‘a member of the household’ to which Marszalek belonged: s 57(1)(e)
  • George lived in a ‘close personal relationship’ with Marszalekat when Marszalek dies: s 57(1)(f)

But how much should the defacto son get?

So George is an eligible person. But how much should George get? What is  George’s ‘proper maintenance or advancement in life’ requirement? The Court considers:

1. what is “adequate by reference to (George’s) needs’?

2. what is ‘proper in the circumstances’?

How much money should the defacto child get?

In family law matters there seems to be little rhyme or reason how the Court comes to what is fair. So too in Family Provision claims. It is a dark art. There was no “scientific, or arithmetic” formula. However, the Court considers:

  • size and nature of Marszalek’s estate
  • relationship between George and Marszalek
  • competing moral and financial claims of Marszalek’s distant relatives
  • financial circumstances of the nephews and nieces

Marszalek spoke with his family on holidays and for milestone events only.

In contrast, George treated Marszalek as a father. The nature of this relationship and the bond between the two was corroborated by evidence from Marszalek’s doctors.

Marszalek owes a moral duty to his nieces and nephews. But Marszalek has a stronger moral duty to provide for George.

Marszalek’s nieces and nephews are poor.

George gets 45% to Marszalek’sestate.

Considered person clause in New South Wales

If you have a ‘defacto son’ then add that person to the ‘considered person’ clause.

What does the Court consider?

What happens when a court resolves to vary a Will? The judge then decides the size of the provision to each person. In making a determination, consideration is given to:

  • considered person clauses (see below)
  • estrangement from, or poor relationship between, the applicant and the deceased;
  • the conduct of the applicant towards the deceased;
  • the overall size of the estate; and
  • the age and circumstances of the applicant.

The area that is the most hostile is ‘family provision’ for an adult child. Court decisions vary between:

1. amending a Will simply because the relationship exists; or

2. to varying a Will only where a special need is demonstrated.

Can both a lover and a spouse challenge your Will at death?

Bigamy seems to now be legal in Australia. In the court case Sha & Cham [2017] FamCAFC 161, 16 August 2017, Mr Sha had both a wife and a mistress. He is deemed, under the eyes of Australian law, at least, married to both his wife and his sex worker. This now lends support to the argument that both a wife, mistress can challenge your Will. See the case here.

Considered Person Clause – helps protect the Will from challenges

It is never a good idea to leave a nominal $1,000 to someone to stop them challenging a Will. It just does not work. And it makes that person a ‘beneficiary’ with all the privileges that a beneficiary gets – such as access and power over the executor.

Instead, when you build a Will on our law firm’s website you are invited to insert a ‘Considered Person Clause’ for any person that is both able to challenge the Will and may want to challenge the Will. We have a specific question on this with all our Wills. To see the wording of the Considered Person Clause just go to any of our Wills and open up the Sample.

The Considered Person Clause merely states that you have ‘considered’ a certain person and you are happy with what they have already got. The wording we use is based on the latest Court cases. The Considered Person Clause makes it more expensive and difficult for that person to challenge your Will. However, it does not stop them from challenging, nothing can achieve that. It just makes it harder for them.

What should the Executor do?

What happens if an executor becomes aware that a Will may be challenged? Your Executor postpones distributing your estate. Reasonable periods of postponement are set out in each Australian jurisdiction. What if the executor has obtained a grant of probate? The executor is then entitled to call in the assets and pay debts. If the Will is successfully challenged, the Supreme Court does not render it null and void. It merely exercises the power to apportion the estate differently to the terms set out in the Will.

I want to challenge a Will. How do I get a copy of the Will?

There are two ways to challenge a Will. Claim the Will is faulty or say the Will is unfair. Either way, you want to get hold of the Will and the Executor. Under the Family Provisions Acts in most States, you only get 6 – 12 months to automatically bring a challenge. This is from the date that Probate is granted. For example, in NSW it is 12 months and in WA it is 6 months.

In some States, only a residuary beneficiary can demand a copy of the Will. Again, NSW is the widest. These people can request a copy of an NSW Will:

  • any person named or referred to in the Will, whether as a beneficiary or not
  • any person named or referred to in an earlier will as a beneficiary
  • the surviving spouse, de facto partner (same or opposite sex) and children
  • a parent or guardian
  • any person who is entitled to a share of the estate if the person died intestate
  • a creditor – Succession Act 2006 (NSW)  section 54

Otherwise, check with the Probate Court in the relevant State – from time to time. If there is an application for a Grant of Probate the Will is with it. Any person, including the press and members of the public, can get a copy of the Will the Probate Court.

Build a Will here that is hard to challenge.

See also:

Unsigned Will still valid

Can the Family Court overide Family Trusts?

Married man marries sex worker

One boy is worth two Wills in Muslim Will

Court creates a Will for disabled father

How to stop your children’s ex-spouses benefitting from your Will

Telephone us for help in building your Estate Planning documents.

Adj Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
National Australian law firm considered person clause considered person clause
National: 1800 141 612
Email: [email protected]ed.com

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1 Comment

  1. […] Who can challenge a Will in Australia – it is not who you thought. Mistress? says: 06/03/2019 at 3:02 pm […]

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