There are various circumstances under which an individual may decide to contest a will or challenge a will.
However, before proceeding with their case against an estate, it must first be determined that the claimant is an eligible person.
Before Contesting a Will or Challenging a Will
To be considered an eligible person, an individual must meet at least one of the following criteria:
- The individual was a former or current spouse of the deceased;
- They were an existing or prior de facto partner of the testator;
- The individual is the child or grandchild of the deceased;
- They are the step-child of the deceased;
- The claimant was an individual who the deceased treated as if they were their own child;
- The individual was a registered personal carer or creditor of the testator;
- They are the brother or sister of the deceased.
After probate has been issued, an eligible person will have a window of six months to lodge their claim against the estate. While it is, in some cases, possible for individuals to pursue a case after this time has lapsed, such action is typically very uncommon.
If you’re unsure whether you’re an eligible person, get in touch with estate lawyers near you. It’s recommended that you do so promptly, as to avoid the complications associated with late applications for a will contest or challenge.
Once you’ve determined your eligibility, your estate professional can assist you in figuring out if your claims are likely to hold legal merit if pursued further. If you make it to this point and it’s looking like your case has the potential to be successful, you’ll be ready to start preparing for contesting a will or challenging a will.
There are various grounds under which an individual can contest a will or challenge a will. In the following, we’ll be discussing your options so that you can decide which approach is best suited to your specific needs.
Approaches to Contesting a Will or Challenging a Will
The following are common reasons why individuals lodge will disputes. By understanding the different types of claims that are typically made, you can determine which one will be the most appropriate in your situation.
- Contesting a Will by Making a Family Provision Claim
If an individual feels that the testator didn’t provide them with adequate provision for proper maintenance and support, they can pursue a family provision claim.
Cases of this nature are driven by an eligible person’s belief that the testator’s intended distribution of their estate is unfair and that, because of this, they ought to receive a greater share of the involved assets or finances. The claimant isn’t saying that the document itself is invalid, rather that they’re dissatisfied with the proposed outcome.
For an individual’s claim to be successful, they must evidence that they didn’t receive adequate provision for proper maintenance and support. The Court will take numerous factors into account when they’re deciding the outcome of a case of this nature, including:
- Whether the deceased has a ‘moral duty’ to provide for the claimant;
- If the claimant has already received adequate provision from the estate;
- Whether the claimant is capable of providing for themselves;
- The extent to which other beneficiaries of the estate will be impacted by the outcome of the claimant’s case.
- Lack of Testamentary Capacity
In some cases, an individual may believe that at the time the testator’s will was written and signed, they didn’t have testamentary capacity.
Cases of this nature are commonly pursued when the testator was suffering from a disease or illness that could have impacted their overall ability to make, understand and approve changes to their will. Thus, in order to be successful with claims of this nature, an applicant must prove that the deceased was not of sound mind, memory and/or understanding during the creation of their final will and testament.
If it’s found that they deceased didn’t have testamentary capacity at the time of their passing, their estate will be administered in accordance with intestacy laws.
- Undue Influence Played a Factor
An applicant may be successful in challenging a will if they can prove that the deceased was coerced, manipulated or under undue influence at the time their will was written and signed.
Will disputes of this nature are often difficult to prove, as supplying the Court with convincing evidence to support your claims can be difficult.
Thus, if you’re considering pursuing a case on the ground of undue influence, or any of the other approaches we’ve mentioned in this article, it’s best to get in touch with experienced estate lawyers.