Who can Contest a Will? What about Stepchildren?

Sometimes a need to challenge a will arises when someone has not been adequately provided for or treated fairly in the deceased estate. Not everyone is entitled to challenge the validity of a Will. Before you can commence such a challenge you must have an “Interest” in the deceased estate. That means you must have either an entitlement in a previous Will or an entitlement on Intestacy (if there is no Will) and you are entitled to a share of the deceased estate by way of your State Legislation.

Reasons for Contesting a Will

1. Family maintenance
This is the most common type of claim. It's where someone close to the person who died believes that they weren't left enough, so they want a larger part of the estate.

2. Lack of capacity
If you were named as a beneficiary in a previous version of a Will, but were removed from the last version at a time when the Will-maker lacked capacity, you may be able to challenge the validity of the last Will.

3. Undue influence
The basis of this kind of claim is that the Will-maker was pressured into making a Will. You must show that the deceased person was 'unduly influenced' by a person (or people) to sign a Will that wasn't in line with their true wishes. It is one of the most difficult claims to succeed with.

4. Breach of trust
If you are a beneficiary of a Will and you believe the executor has failed at their job you can ask the court to remove them.

Can Stepchildren contest a Will?
Blended families with complex family structures, that include one or more stepchildren, are becoming increasingly common throughout Australia. This has caused an increase in the number of stepchildren contesting Wills.

Most of us are aware that family members such as spouses (previous and current), de facto partners and children are eligible to contest a Will but what about stepchildren. A stepchild is not the child of the deceased and so does not receive any interest, as a child, in the deceased's estate either in the Will or, if there is no Will, in intestacy. However, stepchildren can, in some circumstances, make claims under section 6(g) of the Inheritance (Family Provision) Act 1972.

What this means is that being a stepchild does not, of itself, make someone eligible to contest. However, they might still be eligible if they fall into the category as listed in the legislation above such that it can be proved that they were dependent on the person (parent) who has passed away.

If you would like to prepare a Will, Straits Lawyers are now offering an online package for Advance Care Directives and Wills. Simply purchase our package via this link: https://straits-lawyers.square.site/product/will-and-advance-care-directive-package-/13

Alternatively, you can email us at info@straitslawyers.com or call at 08 8410 9069 to arrange an appointment.

Please note that this article does not constitute legal advice.