Adult children most likely to contest wills in Australia

Date: May 14, 2015

The will of someone who has died is not always the end of the matter in deciding how their assets are distributed. 

For different reasons, people sometimes decide to challenge a will in the courts in order to have the assets distributed differently.

Who is most likely to challenge a will?

According to the "Having the Last Word" report by the University of Queensland, the Queensland University of Technology (QUT) and Victoria University, adult children are the most likely group to contest a will after someone has died in Australia.

Adult children of the deceased made up 63 per cent of claims in judicial cases, while former or current partners of the deceased accounted for only 23 per cent. This highlights the importance for will- makers of ensuring children are included in the process to hopefully avoid a future dispute.

Making sure children with special needs are properly taken care for was also important when drafting a will. One quarter of the cases brought by the Public Trustee were on behalf of adult children with impaired capacity or a form of mental or physical disability. 

"It may also reflect family patterns of insufficient provision for an adult child with a disability from a will to protect pension entitlements or because of pre-provisioning," the report said.

The survey found only 3 per cent of family provision claims in the judicial review were on behalf of minors.

Claims by biological children of the deceased were more common than those by adopted or stepchildren, being around 70 per cent, according to the Public Trustee data cited in the report.

Siblings were the majority group contesting their parent's wills, with conflicts between children and partners of their deceased parent representing around a quarter of all cases.

Why do people challenge a will?

The reasons for challenging a will were also found to be quite complex. The most common reason for contestation was exclusion from the will or a significant disparity in how the assets were distributed.

Genuine need was identified as the primary motive of contestation in 32 per cent of cases, while a sense of entitlement was a driver in 19 per cent of challenges. 

The size of the estate was not found to be an issue in the likelihood of whether a will would be contested or not.

Family complexity also played an important role in the likelihood of a contestation of a will, with 62 per cent of cases in the public trustee review having this theme.

The deceased's children who had significant disabilities or ill health, new spouses or partners, separation or divorce and the addition of step families were all identified as factor likely to cause a will challenge.

For more advice on contesting a will, contact a qualified estate disputes lawyer.