Thinking of contesting a Will? Then you need to know your legal rights

Navigating the legal system after the death of a loved one can be a challenge.  It is even more difficult if you have been left out of the Will or don’t get what you expected to.  If you believe you need to contest a Will you might be comforted by the fact that most cases are resolved quickly and without the need to go to court.

When can I contest a Will? 

It is important to know that each state and territory in Australia has its own specific laws dealing with challenges to Wills, however, for the most part, the circumstances for contesting a Will are similar Australia-wide.

You are able to contest a Will if you are faced with a Will that:

  • Excludes you completely or leaves you with inadequate provision.
  • Was prepared as the result of undue influence of another person.
  • Is not clear.
  • You believe is not the last Will.
  • Appears to have been changed by another person.
  • Was written by someone who wasn’t mentally able.

If you decide to contest a Will, you need to lodge an application with the court within the timeframe required in your state. It is a good idea to seek legal advice at this point because the law surrounding Will disputes can be complex and the time limits for bringing your challenge differ from state to state. Seeking legal advice early on in the process can help you understand the laws that apply to the Will that you want to challenge.

Who can contest a Will?

If you want to challenge a Will because you have been left out or because you are not happy with the size of your gift, you need to show that you are eligible to bring a challenge. Not everyone can challenge a Will. Most challenges are made by children and partners of the deceased; if you are not a child or partner of the deceased then you should get advice about whether your circumstances make you eligible to bring a challenge. 

What is probate?

Understanding probate is important when contemplating challenging a Will.  Probate describes the process of lodging a Will with the Supreme Court after death and asking the court to make an order that the Will is valid.

If you want to challenge the content of the Will (for example, you are unhappy with what the Will says because it doesn’t adequately provide for you) then you need to wait for probate to be granted before bringing your challenge. 

However, if your dispute relates to the validity of the Will itself (because you don’t think the Will-maker understood what they were doing or because you think the Will was the result of undue influence) then you must bring your challenge before probate is granted. Once probate is granted, the Will is assumed to be valid. In this situation you need to act quickly to prevent a grant of probate being made. 

Seeking further provision 

When the considering a claim for further provision the following range of factors are relevant:

  • The nature of your relationship with the deceased.
  • How long you knew them.
  • Whether they had any responsibility towards you.
  • How much you earn and what your financial needs are.
  • If you made any contributions to the welfare or estate of the deceased.
  • Personal details, like your age and general behaviour toward the deceased.

When faced with a Will dispute it’s common to feel unsure or overwhelmed by all the legal talk and tasks. You may wonder whether it is all just too hard - but don’t panic. Most disputes never get to court and are settled by negotiation at an out-of-court mediation.

All you really need to know before you challenge is whether you have a case. To help you figure this out, consult a law firm to help you understand your legal rights; it will be able to help you navigate the legal system so that you get the best possible result.  

Andrew Simpson is a Principal in Maurice Blackburn's Melbourne office.  

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Andrew Simpson

Maurice Blackburn Melbourne
When it comes to challenging or defending a Will, Andrew Simpson is the lawyer you want fighting for you. He is a Principal Lawyer and the head of Maurice Blackburn’s national Wills and Estates Law practice, based in Melbourne. Andrew has 20 years’ experience as ...

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