Legal Tip 380: Who Can Contest a Will?

Generally, to be able to contest a will the person would need to have an interest in the estate – present or future. This would mean they would have to be a potential beneficiary of the estate under the current or a former will or under the intestacy laws.


Separately the will may be indirectly contested by the person making a family provision claim but to be able to make a claim the person must be an ‘eligible person’.


Example

Marge dies and her 2 sisters are grumbling and making noise about ‘challenging the will’ as they didn’t receive anything.

Marge has a current will which appears to be valid. The sisters are not a beneficiary under the will, they are no beneficiaries under any of her previous wills and they are not potential beneficiaries under the intestacy laws (if there was no will, these laws would apply). They are also not eligible persons under the Succession Act NSW which is the law that applies in this case.



See a case related to challenging a will involving a sister making a claim. It is a very short case with just 15 paragraphs.

Para 14 is relevant and says:

“From the outline of the facts set out above, it is beyond doubt that Ms Lewis does not have standing to seek revocation of the grant of probate. Because she is not a beneficiary under the 2012 will or under the 2000 will, she has no present or future interest in the estate of the deceased. Even if, perchance, the 2012 will were found to be invalid, the 2000 will would become operative. Under the 2000 will, Ms Lewis is not named as a beneficiary and, therefore, has no interest in the estate whatsoever. There cannot be an intestacy in the circumstances. This being the case, Ms Lewis does not have any recognisable interest in the estate of the deceased that gives her standing to make an application to revoke the grant of probate”.

Griffiths v Lewis [2013] VSC 609 Griffiths v Lewis [2013] VSC 609 - BarNet Jade

 

Common question is - How can I obtain a copy of a will to see if I want to consider contesting it ? Who has a legal right to acess a copy ?

 

anyone with a right to contest a will would have a right to access it.

 

I'm wondering if my mother might have been a potential beneficiary of my grandmother's will? She is my father's mother who died last year. My parents have recently separated (married 47 years) but not divorced. The estate has not yet been sorted out. I assume my grandmother has shared it equally between her three childeen. Assuming the will was written when my parents were together could it be implied that my father's share was intended for both of them as they were married?

If she were to contest the will (assuming she could) how likely is it that she would receive anything?

 

usually parents leave assets to their children. It would be unusual for a parent to leave something to their child and the child's spouse.

I am not sure on what basis your mother could contest the will - something she should seek her own legal advice on.

 

With several of the Wills I have been involved with, the wording often entitles the share of a deceased beneficiary to pass to that beneficiary's children.

So it is possible you and/or your mother may have a claim, but it would depend on the wording of the will.

 

But justlearning’s father is still alive, yes? Would assets inherited by the father form part of the assets to be determined under the divorce?

 

But the mother is not a child of the grandmother - it is the father's mother.

 

Yes, I understand the father was the child, not the mother. However, as I said a Will often entitles the share of a deceased beneficiary (father) to pass to that beneficiary's children (@justlearning and siblings). There also might also be provision in the Will for the Child's spouse (mother), hence why I stated "you and / or your mother".

In any event, the OP should be able to view the Will as it clear from their post that they have not seen it. After reviewing the Will's content, a decision can be made as whether to contest or not.

 

This is something that legal advice should be sought on

 

Thanks for the reply.. yes my father is still alive and my mother has received legal advice that she's not entitled to a share, but to my knowledge neither her nor the lawyer have seen a copy of the will (nor has my father yet I think?). Can anyone request a copy of the will? I don't think anyone really wants to make a fuss but if she's legitimately entitled to a share it would help with her housing situation after the separation.

 

This may be of interest

Legal Tip 224: Who can see your will after your dead? Legal Tip 224: Who can see your will after your dead?