Contesting Wills: What You Need to Know in the Leadup to Christmas

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As the holiday season approaches, it is important to be aware of the legal intricacies surrounding estate litigation and contesting wills. The passing of a loved one is always a difficult time, but disputes over inheritance can add stress and strain to an already emotional situation. This article aims to shed light on the key aspects of contesting wills, to help individuals and their families to understand their rights before Christmas.

Grounds for Contesting or Challenging a Will

There are several grounds on which a person can contest or challenge a will. This article focuses on contesting a will (or seeking a Family Provision order). Contesting a will refers to eligible persons making claims on a deceased person’s estate, if they have not been adequately provided for by the deceased.

Other grounds for challenging a will include the following:

  • Lack of Testamentary Capacity: If the person did not have the mental capacity to make a will, the will can be challenged.
  • Knowledge and approval: Another reason for challenging a will is if the deceased did not know and approve of the contents of the will.
  • Undue Influence: If the deceased was unduly influenced into making their will, this can also lead to a will challenge.
  • Forgery: A will can be challenged if the signature on the will was not the deceased’s signature and has been forged.
  • Fraud: Wills can be challenged if they were obtained through fraudulent means.

Understanding the Law

Before contesting a will, it is crucial to understand the law. The succession law in all Australian jurisdictions provide an avenue for certain eligible persons (they vary somewhat in each jurisdiction), to contest a will if they have not been adequately provided for their proper maintenance, education or advancement in life from the estate of a deceased person.

First, you need to determine whether you receive any provision from the deceased’s estate. Did the deceased have a will? If so, do you receive a share of the deceased’s estate? Who are the people named in the deceased’s will as beneficiaries?

If the deceased did not have a Will, rules apply (known as the intestacy rules), for the distribution of a deceased person’s assets.

Assuming you have not been left with adequate provision for your proper maintenance, education or advancement in life, the next step is to determine whether or not you are an eligible person.

Once you confirm eligibility, you need to determine the size of the deceased’s estate. For example, what were the deceased’s assets and liabilities? If you find out that the deceased’s estate is insolvent, it clearly will not be worth making a claim.

Finally, you should try to gather information regarding the other beneficiaries who are entitled to a share of the deceased’s estate.

Things to Consider Before Christmas

  • Seek Legal Advice Early: If you believe that you have grounds to contest a will, consult with an experienced estate litigation lawyer as soon as possible. There are limitation periods which may apply if you wish to contest a will. These depend upon the State in which the deceased was living and where the deceased’s estate is located. Time is of the essence in these cases, and obtaining legal advice early can potentially impact the outcome.
  • Negotiation: Consider negotiating with the other parties before resorting to Court proceedings. This approach can sometimes resolve conflicts early. However, we recommend that you engage an experienced estate litigation lawyer to assist you with any negotiations with the other parties. Be mindful of what you say to other parties and your actions. Anything you say or do could potentially appear in the evidence filed in Court proceedings.
  • Understand Your Rights and Entitlements: Familiarize yourself with the law by speaking to an experienced litigation lawyer who can assess the strength of your case. Gaining an understanding of your rights and entitlements can help to guide your decision-making process.
  • Gather Evidence: Gather all relevant documents relating to the deceased’s estate, including a copy of the deceased’s will, death certificate, grant of Probate or Letters of Administration (if available to you), your financial records, and any evidence to support your claim. Your lawyer will provide you with guidance regarding the documentation and information that is relevant to your claim. Thorough documentation will strengthen your case in any Court proceedings.

Conclusion

Contesting a will can be complex and emotionally challenging process. By understanding the law and seeking timely legal advice, you can approach these situations with clarity and confidence. As the holiday season approaches, it is crucial to address these matters promptly. This will ensure a smoother process for you. At de Groots, we have experienced estate litigation lawyers who are able to assist you with contesting a will in New South Wales, Queensland, Victoria and the Australian Capital Territory.

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