The legal system can difficult to understand and navigate, especially after the death of a loved one or family member. What makes this period all the more difficult, maybe if you are left out of a Will entirely, or what is provided is not what you had in mind. It may comfort you to know that the majority of Will contesting cases are resolved quickly without any need to go to court.
In the article below we will outline your legal rights when contesting a Will, and the circumstances under which you are eligible to contest a Will.
Under What Circumstances Can Will Be Contested?
Each state and territory in Australia has it’s own laws regarding contesting Wills. For the most part, these laws are fairly uniform across all states and territories. However, it is recommended you visit a lawyer if you would like to know more about the details of contesting a Will in your state.
Some of the circumstances under which you may be eligible to contest a will are listed below:
– The Will completely excludes you from it, or leaves you without adequate provision;
– If the undue influence of another person may have coerced the testator to rewrite their Will;
– If the wording of the Will itself is unclear then the Will may be contested (yet again another reason to contact your local lawyer when constructing your Will);
– You believe that Will is not the latest Will, and that there is a more recent copy;
– If the Will appears to be tampered with by another person or persons;
– If the testator was not in a sound state of mind when they prepared their Will, then you may be eligible to contest the Will.
If one or many of these reasons apply to your case, then you may lodge an application with the court within the timeframe required by your state or territory. This period varies depending on your location within Australia. Before you get to this point, however, it is important to seek out legal advice. Will disputes can be very complex. If you are seeking legal advice early on, it will assist you in your application. Find a local lawyer in your district that specialise in will disputes.
Who Is Able To Contest A Will?
If you believe that you have been left out of a Will unfairly, or what you have been awarded is inadequate, then you will have to show evidence that you eligible to challenge a Will. Not everybody can contest a Will. The majority of will contesting is made by children and spouses of the deceased. If you are not either of these, then you may wish to consult a lawyer to get advice about whether you may be eligible to bring a challenge to the courts.
Understanding Probate And Its Importance In Contesting A Will
Probate is an important concept to understand in relation to contesting a Will. Probate is the process of lodging a Will with the Supreme Court after death and getting to the court to validate the Will in question.
If you would like to challenge the Will, then you will be required to wait for the probate to be granted before you are able to bring forward any type of challenge.
If your dispute is directly to do with the validity of the Will, perhaps because you though the Will maker was not sure what they were signing and therefore a victim of coercion or undue influence, then it is required for you to challenge the Will before the probate is granted by the court. If the Will is granted probate then it is assumed to be valid. In this case you will need to quickly file a challenge if you wish to prevent the probate being made.
What Considerations To Make When Seeking Provision
If you are seeking further provision in a Will as a part of your claim you may need to consider some of the following relevant factors, as these will all be considered by the court to determine the eligibility of your claim:
– What relationship with the testator was and the nature of it;
– What period of time you knew the deceased;
– If the deceased had any responsibilities toward you at the time of their death;
– The amount you earn, or your earning potential, and your relevant financial needs;
– If you had made any contributions towards the welfare or estate of the testator;
– Your personal details, such as age and your behaviour towards the deceased.
Will disputes may feel overwhelming, which is why it is important to talk to a lawyer. Remember that the majority of disputes are sorted out in out-of-court mediation through negotiation.
Remember to consult a law firm that specialises in Will disputes in order to get the best possible result from your claim.