Defending a Will? Here’s what you need to know

It goes without saying: Will disputes are generally stressful for those involved, during what is already an emotional time.

But the fact is, Will disputes are increasingly common; especially given the changing and complex nature of Australian families. However, they don’t need to be a battle.

Going through the legal process can seem daunting, but that’s where we can help.

If you’re the executor or beneficiary of a Will that’s being contested, here are some things you need to know.

On what basis can a Will be challenged?

Wills are typically challenged for one of the following reasons:

1. Someone is unhappy with what they receive from the Will (a provision claim); or
2. Someone has a concern about the circumstances surrounding the making of the Will (a validity claim).

Provision claims

A provision claim can only be brought by someone who is eligible to do so. Each state and territory of Australia has its own laws that govern who can challenge a Will. Generally, most provision claims are brought by:

• a spouse or partner of the deceased;
• a child of the deceased.

Validity Claims

A validity claim is not concerned with the nature and extent of the gifts made by the Will, but rather the validity of the Will itself. Typically, a validity claim is brought when someone believes that:

• The Will-maker lacked capacity and did not understand what they were doing when they made the Will; or
• The Will is the result of undue influence or duress exerted over the Will-maker; or
• The Will-maker didn’t know and approve of the content of the Will when they signed it.

How do I defend a Will?

If you’re the executor or beneficiary of a Will and you need to defend it against a challenge, it’s best to get legal support. What you will need to do will depend on the type of claim that has been made.

Our expert lawyers will explain the process to you and help you respond to the claim. We will handle all the negotiations for you and we’ll work to help you get an acceptable outcome.

Will I have to go to court?

Most Will disputes are resolved by negotiation, even if court proceedings are issued.  

In the highly unlikely event that the claim does not settle by negotiation, we will prepare your case for trial and advise you throughout the process.

Will disputes can be stressful and sensitive. Choosing the right lawyer to help you is important. That’s why your first consultation is obligation-free, so it doesn’t cost anything to know where you stand. Get in touch today and speak to one of our expert will disputes lawyers.