Can A Friend Contest A Will in Australia?

In Australia, close family members can contest the will of a deceased, but there is no provision for a close friend to dispute the distribution of a deceased estate. In order to be able to contest a will, a friend needs to fit into one of the other eligible categories under relevant estate and succession legislation. In some jurisdictions, a friend can be a claimant if they were a “dependent” of the deceased or lived in the deceased’s household. In other states and territories, a friend can contest a will if they can substantiate a close personal relationship or a registered caring relationship with the deceased. This article lists the limited opportunity in each jurisdiction for a friend to contest a will.

What Does It Mean To Contest A Will?

When an eligible person believes that a testator has unfairly neglected them in their will, they can contest the will to the Supreme Court of the state or territory. The court can order that a deceased estate be reallocated to benefit the claimant to an appropriate degree.

Can A Friend Contest A Will in Queensland?

In Queensland, there is very limited provision under the Succession Act 1981 for anyone other than the deceased’s spouse or child to contest a will. A friend can only contest a will if they fall into another eligible category, such as if they are also the parent of the deceased’s child. A young friend of the deceased may make a claim if they are under the age of eighteen and were reliant on the deceased for some of the necessities of life (eg food, shelter, education). In this instance, the court would have to be shown proof that the testator provided regular and substantial contributions to the young friend of the deceased.

Can A Friend Contest A Will in New South Wales?

There are more generous provisions in the Succession Act 2006 for non-family members to make claims against a deceased estate in New South Wales. Someone who was at least partly dependent on the deceased and lived in the same household as the deceased at one time is an eligible person to contest a will. In addition, a person who was living in a close personal relationship with the deceased at the time that they died also has rights under the legislation.

Can A Friend Contest A Will in Victoria?

Those who are eligible to contest a will in Victoria are listed in the Administration and Probate Act 1958. A member of the deceased’s household can make a claim, and so can someone who previously lived with the deceased and was likely to do so again in the future. A friend who was in a registered caring relationship with the testator can also contest the will. A former domestic partner who was entitled to commence proceedings with the deceased in Family Court (eg for a maintenance claim) can also make a claim against the estate.

In Victoria, there is also provision for an “assumed” child to make a claim against a deceased estate, as long as they are also disabled, under the age of eighteen (or under twenty-five for students). An assumed child is a person who was treated like a natural child by the deceased, and who believed that the deceased was their parent for some time.

Can A Friend Contest A Will in the ACT?

In the Australian Capital Territory, the Family Provision Act 1969 does not allow friends to dispute a will. The closest provision is for someone who was previously in a domestic relationship with the deceased for at least two continuous years.

Can A Friend Contest A Will in WA & NT?

There is no provision for a friend to contest a will in the jurisdictions of Western Australia and the Northern Territory. According to the Family Provision Act 1972 and the Family Provision Act 1970, the only type of “friend” who could possibly have a chance to claim against the estate is a former spouse or de facto partner who was legally entitled to maintenance from the deceased.

South Australia

In South Australia, there is no provision in the Inheritance (Family Provision) Act 1972 for a friend to contest a will.

Tasmania

In Tasmania, the Testator’s Family Maintenance Act 1912 allows someone who was formerly in a relationship with the deceased who is entitled to maintenance to make a claim against the deceased estate.

Testamentary Provision For A Friend

Although there is limited opportunity for a friend to contest a will in Australia, a testator can make provision in their will for a friend to receive a bequest of funds or property. However, if a testator does make provision for a friend in their will it may be subject to a claim from an eligible person. The court will prioritise a claim from a family member who has been inadequately provided for over the claim of a friend. A small bequest is unlikely to be questioned, but if a testator leaves all or most of their estate to a friend when they have a moral responsibility to provide for close relatives, then the court is likely to order a redistribution of the deceased estate to better provide for all parties.

The solicitors at Armstrong Legal are highly experienced in all areas of wills and estates. If you have any questions about your right to contest the will of your friend, our contested wills team can advise you. Please contact us or call 1300 038 223 to discuss your legal needs.