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Challenging a Will in a Family Provision Application

If you are involved in a dispute over a will, or challenging a will, the case of Catelan v Herceg [2012] QSC 320 (25 October 2012) will be of interest. The Court had to decide whether to allow an application from the Executor to dismiss a claim from a wife for further provision from an Estate. The decision highlights the importance of regularly reviewing and updating your Will to avoid family members contesting your Will.

Background – Challenging a Will

  • The deceased passed away leaving a substantial estate (estimated between $27 – $60 million);
  • He left a Will leaving his furniture, art works, house and contents and the sum of $2 million to his wife (whom he had been married to for 4 years);
  • His wife cared for him whilst his illness deteriorated rapidly and they lived a “comfortable” lifestyle;
  • Leading up to his death, he spoke with his lawyers about amending his Will to give further provision to his wife (including his companies) which resulted in a draft Will being drawn up, but never signed;
  • The wife challenged the Will on the basis that she had not been adequately provided for (despite having received more than what she was originally entitled to from the first Will);
  • The executor of the will made an application to the court to have the wife’s challenge “dismissed”.

Contesting the Will – Grounds for Dismissal

The executor argued that the challenge to the Will should be dismissed because:

  • The marriage was relatively short – they had only been married for 4 years;
  • The fact that the second will had not been signed indicated that the deceased did not intend his wife to receive further provision than what he had already provided her;
  • The wife did not “need” the further benefit as she had already been provided assets worth $4.5 million which is “adequate” provision for her.

The Court’s Decision

In coming to a decision, the Court stated:

  • The shortness of the relationship should be seen in perspective – the only reason their marriage was cut short was because of the death of the deceased from an illness diagnosed after the marriage, and the fact that the wife had cared for the deceased until his death;
  • The fact that a second Will had been produced suggested that the deceased intended to make substantial further provision to his wife;
  • Whilst the wife was well-established financially, there was the issue that she could not presently meet her personal outgoings.

In light of the above, the court was not satisfied that the executor had established a “prima facie” case for the wife’s application for further provision to be dismissed.

The wife’s dispute to the Will has not yet been finally determined. We will wait to see how the Court’s deal with this contest about the Will. If you have any questions regarding challenging a Will and Family Provision Applications, please don’t hesitate to contact me.

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Chloe Kopilovic

Written by—

Chloe Kopilovic

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