Contest a Will Before Time Runs Out – Legal Aspects of Life

What, why, and how of challenging a will

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If you want to contest a will, it has to be for a good and acceptable reason.

In general, it is difficult to contest a will and go against the intentions of the deceased and beyond what is written in the will. Unless there are legitimate reasons, the Australian court is not likely to change it.

In one particular will case in Australia, a man left his adult son out of his will. The deceased never married his son’s mother, so he left a whole estate to a friend.

The adult son then took his claim to court and argued that having no contact with his father must not be held against him. As a result, the court awarded a substantial portion of the estate to the son.

Reasons for Contesting a Will

One cannot blindly challenge a will. An individual has to identify a solid and legal reason for contesting it. Some of the valid reasons for challenging a will include:

  • The will was not the final one drawn up by the deceased.
  • The will maker was forced, blackmailed or threatened to execute the will against his or her wishes (duress).
  • The will maker’s mental condition was not at its prime during the time of will execution.
  • The will was tampered.
  • The heirs are not adequately provided for.
  • The will is unclear or ambiguous.

If a will is clear, precise, and well-written, challenging it is highly unlikely to succeed. The court aims to ensure that the will maker’s decisions be carried out exactly as he or she intended it to be.

An individual has the right to distribute assets in any manner he or she likes. Heirs can include family members, friends, charities or organizations with whom the will maker shares a close personal connection.

However, family members such as a spouse, de-facto partner, child, grandchild or dependent can challenge a will especially when faced with financial hardship.

Whenever a will is challenged, the court decides if the Will declares enough financial provision for the claimant. If not, then the court may order provision for the claimant to be carried out.

If you are not eligible to challenge a will, then technically, you are not entitled to contest a will.

During a claim, the court considers the views and wishes of an eligible claimant. An individual is given six months to contest a will from the date the probate is granted.

In addition, an application can only be accepted if an Estate has not been distributed to the heirs declared in the will. In the event that Estate distribution has been carried out, it can no longer be changed.

Determining Eligibility to Challenge a Will

A claimant must be able to satisfy the court of his or her dependence on the deceased during the time of death.

The court considers several different factors before granting the claimant’s request. Before deciding, the court will take into consideration the following factors:

  • The length and nature of a claimant’s relationship to the will maker.
  • The obligation of the will maker to the claimant
  • The claimant’s financial resources, needs, and earning capacity during the time of the hearing
  • The physical, psychological and/or intellectual condition of the claimant
  • The age of the claimant
  • The contributions of the claimant to the well-being and family of the will maker.
  • The benefits previously received by the claimant from the will maker
  • The claimant’s conduct, character and personality
  • The amount of financial upkeep the claimant has received from the will maker and the degree of financial provision the will maker has

Challenging a will without a valid reason puts you at risk of violating the “no contest clause”, which is typically stated in a will.

If your challenge is not approved by the court, then you may no longer be entitled to receiving any of your inheritance stated in the will if it has a “no contest clause”. If such a clause is included, then you will have to decide for yourself if challenging it is worth the risk.

Every new beginning comes from some other beginning's end

Asset Distribution

In Australia, an “executor” is named by the deceased in his will. This person is tasked to distribute the assets according to the wishes of the deceased.

He is also tasked to inform beneficiaries of their inheritance, liaise with the heirs, arrange financial support for dependents, collect assets and insurance, sell assets and pay debts on behalf of the deceased.

The executor typically obtains a grant of probate from a court and holds the assets temporarily on behalf of the deceased. Financial institutions do not release assets or properties of a deceased owner without a “grant of probate”.

An individual who passes away without a will is considered to have died “interstate”. This means that all his assets and properties will be distributed according to the law of the State.

Therefore, they are likely to be distributed to family members in spite of the wishes of the deceased. In the case of a de facto relationship, the partner may not be adequately provided for.

If the deceased got a divorce or remarried, the new spouse will benefit from the assets. If there is no wife or children, then the assets are awarded to the closest relatives. If there are no close relatives, the assets are acquired by the government.

Seeking Legal Help

A will can be contested especially if it was fraudulently made. While this is something you can do on your own, you must always seek the help of a lawyer who can guide you through the process.

A lawyer knows exactly which procedures to follow, and this can improve your chances of success. Bear in mind that there is a limited time within which you can contest a will after a probate begins so it is necessary to prepare all the paperwork you will need.

When challenging a will, you need to file an appropriate petition in the probate court under which the will maker’s estate is controlled. The exact type of petition, the basis of your application, and the results will depend on the state law.

Every state has a unique guideline in filing a challenge, which varies substantially. If you are contesting a will in NSW, then you need to follow the rules of the state regarding this matter.

Breaching these policies can delay your claim, increase the difficulty of the process or void your petition.

With all the above considered, it is best to hire a lawyer when contesting a will. The paperwork necessary to successfully challenge a will demands a great deal of detail and research.

In addition, the laws that surround this issue are complicated, and the situations in each case are unique.

If you suspect that a will has been forged, altered, or manipulated, then you must seek legal help from people who can investigate the circumstances surrounding the creation and preparation of the will.

The longer it takes you to lodge your action, the weaker your claim will be in court. It is important to act quickly to prevent the assets from being distributed to the heirs.

When you challenge a will, you will have to attend a hearing in court where you will be asked to prove the invalidity of a will. You will also have the opportunity to present evidence to convince the judge.

Parties that oppose your claim will be given a chance to prove their arguments. This, unless both parties agree to set out an agreement to find a compromise solution.

Hope this information on contesting a will is helpful.

Disclosure: We received compensation in exchange for publishing this post. All the views expressed in this post are of the sponsor.



Show Comments

4 Comments - Read and share thoughts

  1. Donna Merrill

    December 14, 2015 at 11:21 pm

    I hear this from so many people. Someone passes and the family spends years in court here in the U.S. There is one woman I know that isn’t married to the man she lives with but he has her in his will. This man has an ex wife of 30 years with a child.

    I did advise her to get her own attorney to check out the will because it can always be changed or contested. Unfortunately she isn’t …. when will people ever learn?

    This is why I find this message so important. People think a will is something cut in stone when it really isn’t.

    -Donna

  2. Corina Ramos

    December 16, 2015 at 2:23 am

    Hi Harleena,

    This is great information to know. I didn’t know one could contest a will. I haven’t had this happen to me but it is scary to think of what can happen to get to the point of contesting one.

    Thank you for sharing Harleena. I hope you’re having a great day.

    Cori

  3. Profile photo of Rachel Wolany

    Rachel Wolany

    December 26, 2015 at 11:11 am

    Hey Harleena,

    Contesting a well would be a stressful situation to be in. Laws on most things differ from state to state in Australia, one would hope the lawyers would be well informed of this.

    As I was reading I was wondering what sort of predicament would you have to be in to want to contest a will. And my question was answered, thank you.

    I have only ever watched programs that have had a will contested and it always seems to be fueled with bitterness, anger and/or greed.

    I think assets and money bring out the worst in people.

    Rachel.

  4. lh. louis

    May 2, 2016 at 4:36 pm

    Always challenge ourselves is just the purpose of life.




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Contest a Will Before Time Runs Out – Legal Aspects of Life

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