Estate Disputes

Who Can Contest a Will?

If you’ve been left out of a will or feel you haven’t been adequately provided for, you may be eligible to contest or challenge it.

Family Provisions Claims

Contesting a will often involves a family provisions claim with the court. This legal action allows eligible people to contest the distribution of assets in a deceased person’s will, especially if they haven’t been adequately provided for or have been left out entirely.

When someone prepares a will, they decide who inherits their assets. However, Australian laws protect eligible people who have been left with little or nothing.

Eligibility to Contest a Will

You can generally contest a will if you fall into one of these groups:

• Spouses: Including de facto partners, current or former spouses (if they were eligible to bring family law proceedings or have unresolved legal proceedings against the deceased).
• Children: Including grandchildren and stepchildren.
• Dependents: Anyone dependent on the deceased (this varies by state).

If you’ve been left out of a will or feel you haven’t been adequately provided for, you may be eligible to contest or challenge it.

The laws surrounding will disputes are complex and vary by state. It is important to consult an expert will dispute lawyer with local experience.

Can You Challenge the Validity of a Will?

You may challenge the validity of a will if:

• You believe the deceased lacked the capacity to make a will.
• The deceased was under undue influence.

It’s crucial to understand the time limitations for these claims. They must be made before time runs out or you will lose the right to make the claim. If probate has been granted, the court has legally recognized the will’s validity and the executor’s responsibility for distributing the estate. If your claim is late, there might be no estate left to claim against if the executor has finished distributing it.

Grounds for Contesting a Will

There are four main types of claims when contesting a will:

1. Claim for Further Provision: The most common type, where someone close to the deceased believes they weren’t left with adequate provision and seek a larger part of the estate.
2. Lack of Capacity: If you were named as a beneficiary in a previous will but were removed or received a different amount in the last will when the will-maker lacked capacity, you may challenge the last will’s validity.
3. Undue Influence: You must show the deceased was pressured into making a will that wasn’t in line with their true wishes. This is one of the most difficult claims to succeed with.
4. Breach of Trust: If you are a beneficiary and believe the executor has failed in their duties, you can ask the court to call them to account or remove them.

Key Considerations

Before bringing a claim, expert will dispute lawyers will discuss:

1. Your eligibility to bring a claim.
2. Evidence to support your claim.
3. Likelihood of your claim being successful.

Time Limits for Challenging a Will

It’s crucial to start early. Organizing what you need to make your claim takes time, and you don’t want to miss any strict time limits. Generally, you have between six and nine months following the date of death, or the date probate was granted to lodge your claim (depending on the state).

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