Court weighs needs when considering will disputes
Wills are now being challenged at record rates partly due to the growing complexity of what constitutes a family in today’s world with Brady Bunch type blended families and more live-in arrangements. Added to that are burgeoning estate values that make it worthwhile to aggrieved relatives, partners and dependents of the deceased to challenge a will if they feel hard done by.
The Sydney Morning Herald recently reported the number of disputed wills has shot up by 59 per cent since 2005. Even though 95 per cent of disputes over wills are settled in mediation, almost a thousand ended up being heard in the Supreme Court last year.
People are living longer and a major growth area in challenging wills has been with grandchildren and stepchildren. Older folk are marrying or partnering up for the second, third and even fourth time leaving a swag of children and stepchildren and grandkids from the various relationships who feel they are entitled to a slice of the pie.
However Joshua Crowther, a wills specialist at Stacks Law Firm, says the net for potential challengers spreads even wider. Apart from certain relatives, any person who can prove they were a member of the deceased’s household and were “dependent” upon the deceased can bring a claim.
“The court is not in the game of changing a will to make things objectively fair; rather, it has the power to provide provision for an eligible person in circumstances that the provision for them is inadequate given the moral obligation that the deceased owed to the claimant,” says Crowther.
“There are a host of matters the court considers in making a decision, but very important is the size of the estate and also the financial position of the claimant. The greater the financial need for a claimant the better the prospects of success.”
For example, if the estate is $200,000 and the will says it is to be divided between 3 of 4 children then a claim by the one left out is less likely to be successful. If the estate is $800,000 then the claimant is much more likely to be successful because there is more money to go around. This is subject to the circumstances of the particular claim and specialist legal advice is necessary.
It is important to organise your affairs and will so that any such claims are mitigated. A person has 12 months from the date of death to challenge a will but the court can allow an application out of time if there is a sufficient cause.