Can A Beneficiary Contest A Will In Canberra?

Not every beneficiary can contest a will in Canberra. Under the conditions of the Family Provision Act 1969, only certain family members and those with a close personal connection to the deceased can make a Family Provision Claim for a share (or a greater share) of a deceased estate. This article explains which classes of beneficiary can contest a will in Canberra, and expands upon the process involved in making a claim.

Can A Beneficiary Contest A Will In Canberra?

A beneficiary can only contest a will in Canberra if he or she is also in one of the classes of eligible claimant according to statutory guidelines. In Canberra, the classes of eligible applicants include the deceased’s current and former spouse, and their current and former de facto domestic partner (as long as they lived together for at least two years, shared a child, or registered their relationship). In addition, a legally recognised child of the deceased, including an adopted child, is an eligible class of claimant that can contest a will in Canberra. By contrast, a stepchild, grandchild, or parent of the deceased is only an eligible claimant if they can demonstrate to the court that they were financially dependent on the testator.

How Can A Beneficiary Contest A Will In Canberra?

An eligible beneficiary in Canberra can contest a will by filing a Family Provision Claim with the Supreme Court of the Australian Capital Territory. A claimant should only make a claim in this jurisdiction if the deceased was a resident in Canberra or owned real property in the territory.

Before embarking upon an application, a claimant should not only check whether they are in an eligible category to contest a will in Canberra, but also assess whether the testator had a moral responsibility to provide them with a more sizable inheritance.

Why Would A Beneficiary Contest A Will In Canberra?

Sometimes it can seem ungrateful for a beneficiary to question the wishes of a testator who has made some provision for them in the will. Occasionally a testator will include a small bequest for a beneficiary in an effort to circumvent the person’s right to make a claim against the estate. This practice is based on a common misapprehension that if someone receives any provision in a will, no matter how small, this prevents them from seeking a larger distribution from the Court.

On the contrary, in Canberra the law exists to protect not only entitled individuals who are entirely disinherited, but also those who were left with a nominal, inadequate provision. In Canberra, an eligible beneficiary can contest a will because the law provides that certain people have the right to adequate provision from the deceased. A claimant has a right to a fair division of the estate based on a list of criteria, including the claimant’s financial circumstances in comparison to other beneficiaries and claimants against the estate. Other factors that will impact the court’s decision include the nature of the testator/beneficiary relationship and any contribution that the claimant made towards the estate, the claimant’s age, health and character.

Time Limits

An eligible beneficiary can only contest a will in Canberra within limited time frames. The claimant should provide the executor of the estate with written notification of his or her intention to bring a claim before the executor begins the distribution of the estate. The Supreme Court will only hear a legal claim in the six months after they issue a Grant of Probate, barring extraordinary circumstances. The claimant needs to be aware that the court will be reluctant to hear a claim after the estate is distributed.

Can A Beneficiary Challenge A Will In Canberra?

A beneficiary needs to be clear whether their intent is to contest or challenge a will. A beneficiary may need to challenge a will if he or she believes that the document is invalid, obsolete because of a later will, or the subject of fraud or forgery. The most prevalent reason to challenge a will in Canberra is that the deceased did not have testamentary capacity to understand the consequences of their actions in drafting or executing a will.

While there are restrictions as to which beneficiaries can contest a will in Canberra, no such limits apply to challenging the validity of the document. In fact, it is the current or possible beneficiaries of an estate who can question whether the will is a valid document that reflects the deceased’s true testamentary intention.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.


Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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