Contesting a Will
Wills are legal documents that dictate how one’s assets are to be divided after they die. The person who makes the will is called the testator. In cases where there is no will upon death, the deceased assets will be distributed based on the relevant intestacy laws. However, sometimes the already emotionally charged process of probate is compounded by will contests. Below we outline some of the most common question regarding contesting a will.
What is a Will Contest?
Contesting a will entails raising a formal legal objection against the validity of the will based on the belief that the will in question fails to accurately reflect the true intent of the deceased. A will may also be contested if it is otherwise invalid.
Will disputes arise with increasing regularity and occur when someone believes that they have been treated unfairly. Usually, they believe that their share of the will is inadequate or have been left out of the will entirely. Additionally, in the case of intestacy a person might argue that intestacy laws do not appropriately take their right to a share into consideration when dividing assets.
Who Can Contest a Will?
In Queensland, legislation determines who may contest a will through a process called Family Provision Allocation. Generally, a will can be contested by:
- Spouses (including de facto spouses). A de facto spouse (defined in Section 4AA of the Family Law Act of 1975) is a partner of the same or opposite sex that had a relationship with the deceased as a couple who lived together on a genuine domestic basis.
- Children (including step- and adopted children).
- Some dependents (including dependent parents, the other parent of a minor child of the deceased, or any other minor who was dependent on the deceased).
- If you were a dependent of the deceased who was not adequately provided for under the will, then disputing the will is not your only option. If the deceased had superannuation death benefits, you may be entitled to file a claim against those assets. Every case is unique so contact a lawyer to receive the best advice on how to receive what you are entitled to.
- You may also be able to make a claim against the estate if your relationship with the deceased commenced after the most recent will was made.
What About Estranged Family Members?
Estranged family members (such as adult children) may have a claim against an Estate. The Court considers many factors when a will is contested; both the relationship with the deceased and financial need of the parties will inform the Court’s decision regarding the appropriate amount to award. For instance, if an estranged child who claims against the estate is worse off financially than the children who shared a close relationship with the deceased parent, then the estranged child may in fact, have a stronger claim.
When Can I Contest a Will?
A will is commonly contested for a variety of reasons, the most common of which include:
- You feel that the Will does not adequately provide for you.
- Or a promise was made to you that has yet to be fulfilled.
- The testator lacked the capacity to make a will.
- The testator was subjected to undue influence.
- The presence of a clear error or mistake.
- There are assertions that mutual wills or a contract to make a will exists which required the testator to distribute assets differently than specified in the current will.
How Does One Contest a Will?
Contesting a will involves applying to the Court for an order stating that you be properly provided for by the will in contest. Many applications of these applications can be settled through negotiations/mediation instead of before the Court, though the Court will still need to approve the changes to the Will.
Can I Contest the Executor of a Will?
An Executor of a will is the person who bears the burden of administering an estate according to the wishes of the deceased person. If you feel that the executor of the estate in question is not adequately performing their duties, there is a conflict of interest, or is otherwise acting improperly you may file an application for the Court to remove the Executor.
What are the Potential Costs of Executing a Will?
If you are successful in contesting a will, the legal costs of your claim will be paid from the deceased estate though this is not always the case. Sometimes, the executors of the estate will not agree to this arrangement and you might need to apply to the Court for the costs to be paid.
On the other hand, if you are unsuccessful in contesting a will, you will likely be responsible for not only paying your own legal costs, but the costs of the other parties as well. A lawyer will best be able to help you decide if the financial risk is worth it in your specific case.
Will contests are subject to strict time limits. If you wait too long to notify the executor (6 months) and file an application (9 months) your claim may be permanently barred.
If you are considering contesting a will it is best to contact a lawyer as soon as possible because every situation is different and your unique circumstances will dictate how you should proceed.