Contesting a Will: How We Help Veterans and Their Families

When someone dies, the will is supposed to settle things. Often it does the opposite. It leaves out a child who cared for a parent for years. It was signed in a nursing home by someone who no longer recognised their own family. It hands control of the estate to an executor who then does nothing with it for eighteen months.

Veterans First Legal acts in disputes about wills and deceased estates. This article sets out the main types of claims we run, and why some of them come up more often in service families than most people expect.

Why estate disputes hit service families differently

A veteran's estate is rarely simple. Military service produces a particular set of assets and a particular set of family circumstances, and both of them generate disputes.

On the asset side, there is often a military superannuation interest (MSBS, DFRDB, ADF Super), DVA compensation entitlements, a lump sum settlement, and sometimes property acquired with a DHOAS or Defence Service Home loan. Some of these pass under the will. Some do not. Superannuation death benefits usually sit outside the estate and are dealt with by the fund trustee, not the executor. Families frequently discover this only after the fight has started.

On the family side, postings, deployments and long separations put strain on relationships. Second marriages and blended families are common. So are estrangements, sometimes lasting decades. A will made during one marriage and never updated after another can leave a surviving spouse with very little.

And then there is health. Service-related PTSD, traumatic brain injury, substance dependence, and the earlier onset of cognitive decline that can follow all of these, are all directly relevant to whether a will was validly made.

Family provision claims

A family provision claim is an application to the court fora share, or a larger share, of a deceased estate. It is a common type of estate litigation in Australia.

The claim is not an argument that the will is invalid. It accepts the will and asks the court to alter its effect, on the basis that the deceased failed to make adequate provision for the proper maintenance, education or advancement in life to whom they owed an obligation.

Only certain people can bring the claim. The categories vary between states, but generally include spouses and de facto partners, former spouses, children (adult children included), grandchildren in some circumstances, and people who were members of the deceased's household and dependent on them.

If you are eligible, the court then asks a second question: should provision be made, and how much? It weighs the nature and length of the relationship, the size of the estate, your financial position and needs, any disability or health condition, what you contributed to the deceased's property or welfare, the competing claims of other beneficiaries, and any conduct that might disentitle you.

Claims we see regularly include the second spouse left with a life interest instead of a home, the adult child with a service-related injury and no capacity to work, the child who was the primary carer in the final years, and the stepchild left out entirely despite being raised by the deceased.

Testamentary capacity

For a will to be valid, the person making it must have had the mental capacity to make it at the time they signed.

The legal test asks whether the will-maker understood that they were making a will and what it would do, had a broad understanding of what they owned, was able to weigh up the people who might expect to benefit from their estate, and was not affected by a condition or delusion that distorted those judgements.

Capacity is specific to the moment and to the decision. A dementia diagnosis does not by itself invalidate a will, and a person withsa significant cognitive impairment can still have lucid intervals in which a valid will is made. The reverse is also true: a person can present as socially capable and still lack the ability to hold the relevant matters in mindtogether.

These cases are built on evidence, not impressions. We obtain and analyse medical records, GP and specialist notes, hospital and aged care files, neuropsychological assessments, and medication charts. Where necessary we brief neuropsychologists to give expert opinion.

For veterans, the relevant history often includes traumatic brain injury, long-term psychiatric medication, alcohol dependence, and PTSD-related cognitive effects.

Knowledge and approval

Capacity and knowledge and approval are separate requirements. A person may have had the mental capacity to make a will and still not have known or approved of what the document actually said.

Ordinarily the court assumes that a person who signs a will knows its contents. That assumption weakens where the circumstances are suspicious. Common examples are a will prepared or arranged by the main beneficiary, a will-maker who was blind, illiterate, or unable to read English, a document signed days before death or while heavily medicated, an unexplained departure from a long-standing pattern of earlier wills, and a home-made or kit will produced without independent advice.

Where suspicion is raised, the person seeking to rely on the will usually has to satisfy the court that the will-maker genuinely knew and approved what was in it.

Claims against executors and administrators

Getting the right will admitted is only half of it. The estate then has to be administered, and executors and administrators do not always do the job.

Executors owe fiduciary duties. They must collect and protect the estate's assets, pay debts and tax, keep proper accounts, act impartially between beneficiaries, avoid conflicts between their personal interests and their duties, and distribute the estate within a reasonable time.

We act for beneficiaries where executors have stalled the administration for no good reason, refused to provide accounts or information ,used estate money for their own purposes, sold assets at undervalue or to a related party, favoured themselves as a beneficiary over others, or become so entangled in conflict that the administration cannot proceed.

The remedies available include orders compelling an executor to pass accounts, orders for the removal of an executor or administrator and the appointment of a replacement, and orders that the executor personally compensate the estate for loss caused by a breach of duty.

The court's focus in a removal application is the due and proper administration of the estate and the welfare of the beneficiaries.

Time limits

Strict time limits apply to family provision claims, and they differ between states and territories. In some jurisdictions the clock runs from the date of death, in others from the date probate is granted. Extensions are possible but never guaranteed, and an estate that has already been distributed is much harder to claw back.

Challenges to the validity of a will are best raised before probate is granted, which usually means lodging a caveat. Once a grant is made, the path becomes longer and more expensive.

If you think you may have a claim, the time to get advice is now, not after you have finished dealing with everything else.

How we work

We start with a no-obligation assessment of your position. We tell you whether you have a claim worth running, what it is likely to be worth, and what it will cost.

Most estate disputes settle. Courts in every state require the parties to attempt mediation, and the great majority of matters resolve there or before. We prepare every case as though it will be heard, because that is what produces a sensible settlement.

We understand DVA entitlements, military superannuation, and the way service shapes a family.

Talk to us

If you are a veteran, or a partner, child, or a family member of a veteran and you are dealing with a will that does not seem right or feel that the will did not make property provision for you, please contact Veterans First Legal for a confidential discussion.

This article provides general information only and does not constitute legal advice.