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.
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:
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.
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 partner, spouse, unmarried partner, same-sex partner, or child 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.
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.
When considering a claim for further provision the following range of factors are relevant:
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.
Our experienced wills and estates lawyers are here to help - everything from getting your own affairs in order, to administering a Will when you're an executor, to challenging a Will.
Our Canberra office is now closed, but our team continues to serve ACT clients and are available for phone and video appointments. If you need legal advice, please call us on 1800 675 346.
We have lawyers who specialise in a range of legal claims who travel to Tasmania. If you need a lawyer in Hobart, Launceston or elsewhere in Tasmania, please call us on 1800 675 346.