If you’re thinking about contesting a Will, you probably have a lot of questions about how it all works, whether you’ll have to go to court and what sort of outcome you can expect. The good news is that most Will disputes settle out of court quickly and effectively. This means that the details of your family dispute can be kept private.
Who can contest a Will?
Wills can be contested by anyone who had a close and significant relationship with the deceased, and who can show they were not adequately provided for in the Will. This can be a partner, spouse, unmarried partner, same-sex partner, or child of the deceased. Even if you had been estranged from the deceased for years, you may still be eligible to contest the Will.
When to contest a Will?
Even though a person has the legal right to choose who to leave their assets to, there are situations where the Will-maker’s wishes can be challenged. These include where:
- You are left out of the Will completely
- You think your gift is too small
- The Will was not prepared correctly
- There is no Will and you are not happy with the way the law distributes the estate
- The Will was prepared under pressure, bullying or harassment
- Someone has tampered with the Will.
Will I have to go to court?
Probably not, as most Will disputes are actually settled out of court. In fact, more and more people are now using alternative ways to solve their legal problems outside of court, usually by negotiations at mediation.
Going to court can be costly, stressful and time-consuming. A court hearing may not always lead to the outcome you want. Going to court should be the last resort.
Out-of-court settlements save a lot of time, stress and money. Resolving your dispute out of court also gives you far more control over the case and the outcome, as you participate more actively in the settlement process. Having an involvement in the negotiation process also creates opportunities for you to find other solutions that the court wouldn’t consider.
A negotiation also allows everyone’s point of view to be heard in a less formal setting. This can sometimes help reduce tension or emotional distress between disputing parties. What’s more, it’s all done behind closed doors, so you won’t need to air any dirty laundry in the courtroom.
Andrew Simpson is a Principal in Maurice Blackburn's Melbourne office.