How to challenge a Will
Challenging a Will can feel like an intimidating task. But, with one of our experienced lawyers on your team to guide you through every step, you have nothing to worry about.
Start with a free consultation
Meet with one of our local expert lawyers to talk through your options and assess if your claim is strong enough.
Agree to proceed
In most cases we work on a ‘no win, no fee’* basis. If there are any likely costs, we’ll give you a cost estimate UPFRONT.
Let us prepare your claim
We’ll explain how we think we can run your case to get the best possible outcome with minimal stress.
We negotiate your settlement
We settle most Will disputes quickly and discreetly out of court.
What does 'contesting a Will' mean?
When someone you love dies it can feel like the hardest time you've ever been through. If you later find out that you've been left out of their Will it can be devastating.
When a person writes a Will, it's 100% their right to decide who inherits their assets after they die. But Australia also has laws to protect eligible people who have been left with little or nothing in a Will.
The laws surrounding Will disputes can be extremely complex. They also vary hugely from state to state. So it's important to work with an expert Will dispute lawyer who has industry leading knowledge and local experience.
If you've been left out of a Will or you feel that you haven't been left enough, you may be eligible to contest or challenge. Speak to one of our local lawyers today.
Who can contest a Will?
There are four overarching groups of people who are generally eligible to contest someone's Will, including:
- spouses (current and previous)
- de facto partners
- children (including some stepchildren)
- anyone who shared the same home with the person who passed away (depending on the circumstances).
If you belong to one of these groups and you believe that you're entitled to more of the estate than you got, you potentially have a valid claim.
What are the different types of claims on Wills?
There are four main types of claims you can choose from when you want to contest a Will, including:
- Family maintenance
This is the most common type of claim. It's where someone close to the person who died believes that they weren't left enough, so they want a larger part of the estate.
- Lack of capacity
If you were named as a beneficiary in a previous version of a Will, but were removed from the last version at a time when the Will-maker lacked capacity, you may be able to challenge the validity of the last Will.
- Undue influence
The basis of this kind of claim is that the Will-maker was pressured into making a Will.
You must show that the deceased person was 'unduly influenced' by a person (or people) to sign a Will that wasn't in line with their true wishes. It is one of the most difficult claims to succeed with.
- Breach of trust
If you are a beneficiary of a Will and you believe the executor has failed at their job you can ask the court to remove them.
How to contest a Will
The most important part of contesting a Will is to get started early.
It can take a while to get all your ducks in a row before you can make your claim and you don’t want to miss any of the strict time limits that apply. Generally, you have between 6 and 12 months (depending on which state you're in) following the date of death to lodge your claim.
If you're challenging the validity of a Will (e.g. for lack of capacity or undue influence), this claim must be brought brought before probate is granted.
Plus, if your claim is made late, there might end up being no estate to claim against if the executor finishes distributing the estate first.
There are two key areas you need to clarify with your lawyer before you can begin negotiating your settlement:
- your eligibility
- proof of your claim.
How can your local Maurice Blackburn team help?
Will disputes are increasingly common, especially given the changing and complex nature of Australian families. But they don't need to be a battle – someone close to you dying is hard enough on everyone involved. It's all about working together for a fair result.
Maurice Blackburn lawyers have a long history settling Will disputes in Australia. Our expert Wills & Estates lawyers settle 98% of Will dispute cases out of court.
We will do everything we can to find proof for your claim to help you get what you deserve. Your first consultation, where we determine if your case is strong enough, is free. Plus, if you decide that we are the right lawyers for the job, we will often work with you on a 'no win, no fee'* basis.
Discuss your Will dispute now and experience:
- tailored, empathetic and expert guidance
- leading industry lawyers
- minimal stress
- 'no win, no fee'*