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It is always a difficult time when a relative or loved one passes away but emotions can be heightened when there is a dispute over the Will.
If someone close to you has died and you believe the Will to be unfair, there may be legal steps you can take to claim money or assets from the estate that you are entitled to.
To find out how to dispute a Will, the first step is to find a legal professional who specialises in this area and believes you have a case. There are specific scenarios under which you may be entitled to a share of a deceased person’s estate.
Take a look at some tips and information from our Gold Coast Wills specialists:
When can you dispute a Will?
The first step is determining if you are eligible to make a claim. Crest Lawyers Will and Estate Lawyers may advise you to proceed with your claim if:
- It has been less than twelve months since the person passed away.
- You believe the testator (the person who made the Will) did not have the mental capacity to understand what they were doing when they made the Will (you are likely to need medical records to help prove this).
- You believe someone has exerted pressure on the testator to make a Will that was not in their best interests.
- You believe the Will is not valid because it has been forged, or someone has lied to the testator about the contents of the Will.
- You believe the testator did not understand or approve of the contents of the Will.
- You are a close relative of the deceased such as a sibling, parent or child, or you are related to them by marriage.
- You are a grandchild of the deceased and you were dependent on them.
- You have a relationship of significance with the deceased such as a de facto partnership.
- The Will was not signed correctly or was not documented property (e.g. nobody has witnessed the Will being signed)
The steps to dispute a Will
If you want to dispute a Will in Australia and you have professional advice saying your claim is valid, you’ll need to follow some specific steps.
First, you’ll need your lawyer’s help to file a family provision application with the court.
Next, you’ll need to attend a directions hearing.
After that, there will be mediation between you and/or your representative, and the Will’s executor.
If the issue cannot be resolved through mediation, you may need to go to court, where a decision will be applied that reflects the laws around Wills and estates.
Finally, if the dispute is not resolved after the above steps, you have the option to appeal the decision.
The above may sound simple but it will take a lot of work to prepare your notice of objection and be ready for hearings.
If your matter does reach court, the decision will be based on factors including:
- Whether or not the Will is ‘fair’
- If it is reasonable to assume you should have been provided for in the Will
- The intentions of the testator and their mental capacity at the time the Will was created
- The level to which you were dependent on the deceased
- The evidence you are able to provide to back up your claims
It’s important to have a good Wills and Estate lawyer when you’re disputing a Will, because the process is complex. An experienced lawyer will be able to help you navigate the process and give you the best chance of success.
Before you decide to proceed, you need to weigh up whether the cost of disputing the Will could outweigh the funds you receive at the end of the process (*sometimes the estate will pay your legal costs). Ideally, you will be able to settle with the other beneficiaries or the executor via mediation rather than going to court. This will allow you to reach an outcome that suits everyone, rather than a verdict being handed down by a judge.
If you’re thinking of disputing a Will and you’re based on the Gold Coast, contact Crest Lawyers today to discuss your options.
Disclaimer: The content contained in this news post is general in nature and is intended to provide a general summary only and should not be relied on as a substitute for legal advice.
