A Will is a legally binding document that outlines someone’s wishes in relation to the distribution of assets after they pass away. In some circumstances, family members or other dependents of a deceased person believe they have the right to contest a Will and in some cases they may be legally able to do so.
Take a look at what happens when someone wants to contest/challenge a Will:
Understanding the basics of contesting a Will
Before delving into the intricacies of challenging an Will, it’s essential to grasp the fundamentals. Each state in Australia has its own laws that govern Wills and Estates, but there are a few points that tend to be the same across the board.
In Australia, a Will can be challenged on several grounds:
- Lack of testamentary capacity: To create a valid Will, a person must have the mental capacity to understand the implications of their actions. This means if it can be shown that the testator lacked the capacity to make rational decisions when the Will was completed, there may be grounds to contest.
- Undue influence: If there is evidence to suggest that the testator was unduly influenced by someone when creating their Will, it can be challenged. Undue influence may involve coercion or manipulation.
- Forgery or fraud: If it’s suspected that the Will is fraudulent or has been forged, it is not legal and can be contested.
- Family provision claims: In many states, family members or dependents who believe they have not been adequately provided for in a Will can make a family provision claim. This allows family members to petition for what they believe to be a more fair share of the inheritance.
- Invalid execution: A Will must be executed in accordance with the law. If the proper procedures were not followed during its creation, there are grounds for challenge.
The challenging process
Contesting/challenging a Will is not straightforward, and it often involves a lengthy and emotionally taxing legal process.
Here’s an overview of the steps involved:
- Consultation with a lawyer: The first step for anyone considering challenging a Will is to consult an experienced estate lawyer. They will assess the case’s merits and provide guidance on whether it’s worth pursuing legal action. Attempting to challenge or defend a Will without legal counsel is highly inadvisable.
- Notification to executors: If a decision is made to challenge the Will, the executors and beneficiaries named in the Will must be formally notified. This initiates the legal process.
- Filing a court application: To formally challenge a Will, an application must be filed in the appropriate court. The specific court will depend on the state’s jurisdiction.
- Mediation or negotiation: Depending on who is involved and who objects to the Will being challenged, parties involved may attempt to reach a settlement through mediation or negotiation before going to court. This can save time and legal costs and is often the best solution if it is possible.
- Court proceedings: If a settlement cannot be reached, the matter will proceed to court. Both sides will present their arguments, and the court will make a decision based on the evidence and applicable laws.
- Court decision: The court’s decision may involve upholding the Will, making alterations to it, or declaring it invalid. The court’s decision is legally binding.
It is important to understand that there are strict timeframes that you must adhere to if you want to challenge a Will.
Before you challenge a Will
Before you decide to contest a Will, you should spend some serious time discussing the implications with your lawyer. Any steps that can be taken to settle the matter out of court are worth exploring for the mental well-being of all involved.
If challenging a Will means going against the wishes of other parties such as the deceased person’s family members or business partners, it may be worth hiring a professional mediator to talk the issues through in order to come to an amicable conclusion.
Need help to challenge a Will? Reach out to Crest Lawyers today.
Disclaimer: The information 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 professional advice. Whilst the information is considered to be true and correct at the date of publication, changes in circumstances after the time of publication may impact upon the accuracy of the information.