Who can contest a Will
If you've been left out of a Will or you feel that you haven't been adequately provided for, you may be eligible to contest or challenge the Will.
When a person prepares a Will, it's 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.
You're generally eligible to contest a Will if you fall into any of these four groups:
- spouses (current and previous)
- de facto partners (current)
- children (including some stepchildren)
- anyone who is dependent on the deceased (this differs state to state).
The laws surrounding will disputes are complex and vary from state to state. It's important to work with an expert will dispute lawyer who has industry knowledge and local experience.
Challenging validity of a Will
If you believe someone didn't have capacity to make a Will, or they were under undue influence, this claim must be made before probate is granted. If probate has already been granted, this means that the Court has legally recognised the validity of the Will and the executor responsible for the distribution of the estate and assets. If your claim is made late, there might end up being no estate to claim against if the executor finishes distributing the estate first.
The most important part of contesting a Will is to get started early. It can take time to organise what you need to 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, or the date probate was granted, to lodge your claim. In some jurisdictions, the time limit commences when probate is granted.
How to start a claim
There are two key areas you that we will discuss with you before bringing a claim and commencing settlement negotiations:
- your eligibility to bring a claim; and
- the evidence you have to prove your claim.
Types of claims
There are four main types of claims that arise from a Will:
- 1. Claim for further provision
- 2. Lack of capacity
- 3. Undue influence
- 4. Breach of trust
1. Claim for further provision
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.
2. 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.
3. 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.
4. Breach of trust
If you're a beneficiary of a Will and you believe the executor has failed at their job you can ask the court to call them to account or remove them.
Our process for contesting a Will
We work together with you to secure proper and adequate provision from the estate. We'll do everything we can to thoroughly prepare your case and negotiate an outcome that recognises your relationship with the deceased, and your financial need.
Your first consultation is obligation-free. After that, we work with you on a 'no win, no fee'* basis.
Get in touch
You'll meet with one of our lawyers to talk through your options. We'll assess your claim and advise you if it is strong enough to proceed with.
We 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. If a negotiated settlement is not possible, we'll work with you to prepare the matter for trial.
Our experienced wills and estates lawyers are here to help.
Get in touch to find out where you stand.
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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.