How to Contest a Will in Australia
When a loved one passes away, the distribution of their estate can sometimes lead to conflict among family members or other beneficiaries. One of the most contentious issues is when someone decides to challenge a Will. Understanding how to challenge a Will in Australia is crucial for anyone who believes they have been unfairly left out of an inheritance or suspect that the Will doesn't reflect the deceased’s true intentions. In this article, we will explain the legal grounds for challenging a Will, the process involved, and what you can expect along the way.
1. Obtain Legal Advice
The first step in challenging a Will is to consult a qualified lawyer who specialises in Wills and estates. They will assess the facts of your case, provide advice on the strength of your claim, and guide you through the legal process.
2. Gather Evidence
To strengthen your case, you will need to provide evidence supporting your claim. This might include medical records, witness statements, or evidence of the deceased's intentions, among other things. Your lawyer will help you gather the necessary documentation.
3. Mediation
At Hanna Lawyers, we are able to assist you with mediation to try and bring your matter to an early resolution. In some cases, mediation can help resolve the dispute without going to Court. Many estates are successfully settled at this stage, which can save both time and money.
4. File a Claim to Commence Proceedings
If the dispute is not resolved through mediation or settlement, the matter may proceed to Court. It is best to file your claim as soon as possible after the deceased has passed away and no later than within 12 months of the deceased person’s death. If you fail to file within this time period, you will need to apply to the Court for an extension of the limitation period. Once files, the court will hear each side’s arguments and make a determination about the validity of the Will or the appropriate distribution of the estate.
Seek Expert Legal Advice on Challenging a Will in Australia
Challenging a Will can be a complicated and emotional process, but with the right legal support, you can navigate the system and protect your rights. Whether you’re contesting a Will due to concerns about the testator’s mental capacity or making a family provision claim, it is important to act quickly and seek advice from a skilled lawyer.
If you need assistance with challenging a Will or making a Family Provision claim in Australia, Hanna Lawyers expert team of Wills and Estates lawyers is here to help. You can find more information about Wills and Estate on our website. Contact us today to discuss your case and explore your legal options.
What Does it Mean to Challenge a Will in Australia?
Challenging a Will refers to the process of disputing the validity of a deceased person’s Will or the way their estate is distributed. There are several reasons why a Will may be contested, including doubts about the deceased’s capacity, undue influence, or the presence of a newer Will that overrides the one being submitted for probate. In Australia, the right to challenge a Will is governed by state and territory laws. In NSW the applicable legislation are:
Key Grounds for Contesting a Will in Australia
There are several legal grounds for contesting a Will. Common reasons include:
1. Lack of Testamentary Capacity
A Will may be challenged if the deceased person was not mentally capable at the time they made the Will. For a Will to be valid, the testator must be of sound mind, memory, and understanding when executing it. If it can be proven that the testator lacked capacity, the Will may be considered invalid.
2. Undue Influence
If a person can prove that the testator was coerced or unduly influenced into making the Will, this can be grounds for a challenge. Undue influence means that the Will was made under pressure from someone who manipulated the testator’s wishes.
3. Family Provision Claims
Under Australian law, certain people (such as spouses, children, or dependent relatives) have the right to make a claim for a greater share of the estate if they believe they have been inadequately provided for. These are known as family provision claims, and they can be made regardless of the testator’s wishes.
There are several factors that the Court takes into consideration when determining a claim for family provision including the relationship of the parties, the value of the estate and the financial circumstances and need of the applicant compared to other competing interests.
4. No Proper Execution
A Will must be executed in compliance with the relevant legal formalities in order to be valid. For example, the Will must be signed by the testator in the presence of two witnesses. If these formalities are not followed, the Will may be contested.
How to Challenge a Will or make a Family Provision Claim
If you believe you have grounds to challenge a Will, there are several steps you can take. The process can be complex, and having the guidance of an experienced Wills lawyer can help.
Disclaimer: This article is for general informational purposes only and should not be considered legal advice. If you’re dealing with a legal issue, it’s recommended that you seek advice from a qualified lawyer to understand your specific circumstances.
