Sisters In Law: What are your legal rights when contesting wills?

Sebastian cared for his elderly mum for years while his siblings didn’t lift a finger – but now, he’s worried a fight over her cash is brewing.

Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn tackle your legal rights when it comes to contesting wills.

QUESTION: My very elderly mother hasn’t seen my brother for years and barely has any contact with my sister either, while I have cared for her for years through multiple illnesses. My siblings haven’t been cut from her will completely but will receive far less than I will. However, I’m worried that once my mum passes, a family feud will kick off and an ugly money fight will ensue. What are the rules when it comes to contesting wills? – Sebastian, ACT

ANSWER: Disputes over estates are often very messy, not just because of the complexity of the legal issues involved, but because they also involve the deceased’s loved ones who are emotionally affected.

Disputes can arise no matter how well a will is drafted.

To ensure your mother’s will is legally valid and to minimise the chance of it being found to be invalid, she should get some legal advice.

Legal advice is usually a good investment to ensure a will withstands any challenge, as a dispute over a will can be costly for the estate, and those involved.

A lawyer will make sure your mum was (or is) mentally capable at the time the will was made and understands the effect of her wishes with respect to splitting up her property and assets between you and your siblings.

There are many other detailed and complex legal requirements for a valid will, including being in writing and being witnessed in a certain way.

If, on your mum’s passing, your siblings believe that she didn’t make adequate provision from the estate for the proper maintenance and support of them then they can make an application to the court to have the situation corrected.

This is called a family provision application.

Disputes can arise no matter how well a will is drafted. Picture: iStock

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If this were to occur, prior to making the court application, the ideal situation would be for your siblings to speak with you about the dispute in an attempt to reach an agreement without having to proceed down the formal court path.

If you can reach an agreement, then this should be confirmed in writing and all of the parties should sign it.

If the informal discussions are not successful, then the court application will need to proceed.

Generally speaking, the legal costs of making an application will be paid from your mum’s estate, however if your brother and sister are unsuccessful in challenging the will they may be ordered to pay the costs of the estate.

The court considers these applications in two stages:

1. Whether adequate provision has been made for your mum’s children; and

2. If adequate provision has not been made then the court will determine what provision should be made for you and your siblings.

The court will consider a number of factors, including the size of your mum’s estate, the distribution under the will, your and your siblings’ financial positions, their age and health, and the relationship between you all and your mum.

If any of your siblings were estranged from your mum, or there had been a recent dispute, then the court will consider this.

If your mum had provided a loan to any of her children, provided rent-free accommodation, or worked for them prior to her death, then these factors will also be relevant for a court.

As you can see, this area of the law is quite complex and everyone’s situation will be very different, so getting legal advice about your specific circumstances is often a good option.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.

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