Contesting a Will
Contesting a Will can be a challenging and difficult process, making the assistance of a compassionate lawyer invaluable. In this article, we delve into the obstacles that can emerge for families concerning Wills. These challenges range from disagreements over the designated inheritance amount to addressing accusations of undue influence and investigating breaches of fiduciary duty.
Who can contest a Will?
Those who may be entitled to contest a Will include individuals who have been excluded from it or believe they haven't received a satisfactory share. While a person has the freedom to decide the distribution of their assets through a Will, Australian laws also safeguard eligible individuals who haven’t received adequate provision.
Eligibility to contest a Will typically applies to the following groups:
Spouses (both current and previous)
De facto partners (current)
Children (including certain stepchildren)
Anyone who was dependent on the deceased (eligibility may differ from one state to another).
Effectively navigating the legal complexities of will disputes requires the expertise of a knowledgeable will dispute lawyer.
Time constraints
There are deadlines to take into account if you are considering contesting a will. To avoid missing strict deadlines, you should therefore start the process as soon as possible. In Victoria, you have 6 months from the date probate was granted to lodge your claim.
When starting a claim, two vital aspects that we will discuss with you before proceeding with settlement negotiations are:
Your eligibility to bring a claim.
The evidence you possess to support your claim.
By addressing these key points early and seeking professional legal advice , you can navigate the Will contesting process more effectively.
Challenging Validity of a Will
If you suspect that a Will's validity is in question due to the will maker’s lack of capacity when creating it or being under undue influence, it's crucial to bring forward such a claim before probate is granted. Once probate is approved, the Court acknowledges the Will's validity, and the designated executor takes charge of distributing the estate and assets. A delay in making a claim could result in the estate being fully distributed, leaving no assets to contest.
Types of claims
There are different ways that wills can be challenged in Victoria which are summarised below:
Claim for Increased Provision - Where a person argues that they have not been left enough in the will and are seeking a larger share of the estate.
Lack of Testamentary Capacity - Where a person may have been left a bequest in a previous will but were subsequently excluded and the person argues that the willmaker lacked mental capacity to make a new will.
Allegations of Undue Influence - Where a person argues that there was external pressure applied to the willmaker to draft the will in a certain way.
Breach of Fiduciary Duty - If a person argues that the executor has not fulfilled their obligations.
Will disputes cover diverse categories and it is therefore vital to seek the support of a compassionate and knowledgeable lawyer. At Norton Legal our team of lawyers understands the stress that people seeking to dispute a will are under and the emotions that this can bring up for people, often at what is already a difficult time.
Contact Alison today for more information.
