Contesting a Will

“If you have not been provided for in a deceased’s will, you may be entitled to claim part of their estate provided you are an eligible person and are able to substantiate your entitlement.”

If you are a close relative, partner or friend of a deceased in whose will you were not provided for, you may be able to claim part of their estate by disputing that will. These claims have increased in number over the past few years due to the use of the ‘Do It Yourself Will Kits’ and the changing nature of Australian families.

In a disputed will case, only an eligible person can make a claim for a deceased estate. There are a number of situations where a person may be eligible to make a claim for a deceased estate. Identifying and applying those circumstances and situation to a particular case require understanding of the relevant laws and the processes through which the entire case can be initiated and concluded. Therefore, if you have not been provided for in a will and believe that you may be entitled to the deceased’s estate, it is essential that you contact us as soon as possible to discuss your eligibility to contest, or challenge, the will and make a claim for part of the deceased estate.

Who can challenge (contest) a will?

People who fit within the categories listed below may be able to contest, or challenge, a will and make a claim in deceased estate:

  • A partner of the deceased at the time of the deceased’s death. This includes a husband, wife or a de facto partner. Partners of the same sex are included in this category.
  • A child of the deceased including children born outside marriage or de facto relationships.
  • A grandchild of the deceased who at any point of time was dependent on the deceased.
  • A member of the deceased’s household who was dependent on the deceased.
  • A former wife, husband or partner of the deceased.
  • Any person who, at the time of the deceased’s death, was living in a close personal relationship with the deceased.

Therefore, challenging a will is not limited to close relatives or partners of the deceased. Usually, the eligibility of a husband, wife, de facto or child to make a claim is not disputed while other persons making claims must meet certain statutory criteria before they may proceed.

Grounds for challenging a will.

A person may be able to contest a will by challenging its validity or challenging the adequacy of portion, or amount, provided to them in the contested will.

You may be able to contest the Validity of a Will if you believe that one of the following circumstances apply:

  • The deceased did not have the required legal capacity to make a will.
  • The deceased was subjected to undue influence in making the will which, as a result, rendered the will provisions contrary to the deceased wishes in normal circumstances.
  • The will was revoked by the deceased before his or her death.
  • The deceased made a later will.
  • The deceased was not aware of, or did not approve of the content of the will.
  • The will was not signed by the deceased.
  • There was an error or interference in execution of the will.

Relevant factors.

There are a number of factors the court considers when dealing with will dispute cases. If you initiate will dispute proceedings, expect the court to consider the following issues:

  • The nature and duration of your relationship with the deceased.
  • Whether you have made any contributions the deceased estate.
  • The size and value of the deceased estate.
  • Your financial circumstances and needs.
  • The financial circumstances and needs of other beneficiaries in the estate.
  • Any promises or undertakings made to you by the deceased while he or she was alive.

How to contest a will?

The first step in challenging a will and making a claim for a deceased estate is to obtain legal advice in relation to your particular case. Our probate and wills lawyers will assess your case and provide you with precise and accurate advice. Contact us today to make an appointment.

If you decide to make a claim or contest the will, our lawyers will prepare and file your application in court along with your supporting affidavit and documents. Other parties in the case will be notified and given the opportunity to file their responses.

Although proceedings commence by filing deceased estate claim applications in court, Parke Lawyers has a strong record of resolving 95% of will dispute cases through mediation and before cases progress to court hearings.

WILLS, WILL DISPUTES & ESTATES

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