There’s nothing more distressing than the death of a loved one. Yet, often that stress is exacerbated when a deceased person has made unusual or incomprehensible provisions in their Will in respect of those who could normally be expected to be beneficiaries of the Estate. In those cases, the relevant parties might need to know all about contesting a Will.
When it comes to Wills, in some cases, the deceased might not have been in the right state of mind to create or update their Will. In other cases, circumstances may have changed in the months or weeks before their passing – perhaps a new grandchild was born, a marriage had dissolved, or a beneficiary’s financial situation changed drastically. There may even be a clear error in the Will, rendering it ambiguous or unfair for the deceased’s loved ones.
Whatever the case may be, before you embark upon the path of contesting a Will, it’s important to understand how to contest a Will (or if you’re eligible, to begin with) and the success rate of contesting that Will. It’s also critical that you recognise any circumstances that could reduce your likelihood of making a successful claim.
Contesting a Will in Australia is surprisingly common. In fact, it is estimated that over half of all Wills are contested in courts, usually by partners, former partners, or family members. Keep reading to discover how to contest a Will.
What does contesting a Will involve?
In Australia, you can contest a Will if there is a good reason to do so. Those eligible to contest a Will are spouses (including former partners or de facto partners), children, grandchildren, members of the deceased’s household or other dependants of the deceased. In some cases, provision can also be made for those with a close personal relationship with the deceased or those who supported the deceased financially.
However, in some cases, a Will can be disputed by someone who does not fall into any of these categories, for instance, if the deceased was under duress when making the Will. The situation becomes even more complicated when there are several parties involved in the deceased Estate wanting to contest the Will.
Requirements for the proper execution of a Will
The rules for each state are different, but when contesting a Will in NSW, you must make your claim within 12 months of the death of the deceased. To contest a Will, you must also be one of the eligible people listed above, except in special circumstances.
You can only contest a Will once it has been registered for probate by the executor. This involves submitting documents to substantiate the deceased’s death. The only assets you can divide are the ones listed in the Will – you cannot attempt to claim any non-Estate assets such as superannuation or any jointly owned assets.
What are the common reasons as to why a Will may be contested?
Why do a deceased’s loved ones want to contest their Will in the first place? There may be a number of reasons, such as:
- The deceased was under the influence of another or lacked the mental capacity to create the Will,
- The Will has been forged,
- There is an obvious error in the Will, or
- Proper provision was not made for a beneficiary in a Will.
What is the process for contesting a Will?
The process for contesting a Will can take time, so if you’re considering it, it’s best to get started as soon as possible.
First, you must seek professional advice from a lawyer specialising in Wills and EEstates. They will be able to determine if you have the legal rights and adequate grounds to contest a Will.
Next, you’ll typically attend mediation with any beneficiaries of the Will, as well as the trustee of the Will. If you cannot reach a satisfactory understanding, you will need to take the claim to court.
The case Will be taken to court and a verdict will be reached, however, there are no guarantees that you will be successful. The process for an out-of-court settlement typically takes around 6 months, whereas going to court may take up to two years or more.
What is the success rate of contesting a Will?
The laws governing Wills and Estates are complex and require expert legal advice. Provided that you are eligible to contest a Will and have a good claim, you may have a good chance of success, but it will depend on the grounds in which you are challenging the Will.
For instance, if you are contesting a Will on the grounds that the Will does not adequately provide for you, you and your legal team would need to provide evidence, usually including information about your financial situation.
A 2015 report found that 74% of claims to contest Wills in Queensland were successful, and resulted in a Will being changed. That said, there are many factors that the court will take into consideration when determining whether or not you have a successful claim, such as your financial situation, your relationship with the deceased, your age and earning capacity, and whether or not the deceased was already providing for you prior to their death. Before you contest a Will, you also need to take into consideration any legal fees you would need to pay, and think about the size of the Estate and the evidence you have on hand, in order to determine whether it’s worth contesting the Will at all.
Contesting a Will can be a little complicated, so it’s important to enlist a lawyer with specific experience in Wills and Estates. If you believe you or someone close to you has been left out of a Will or has not received adequate provision, you must start the process of contesting the Will as soon as possible and seek specific legal advice pertaining to your situation. Your lawyer will be able to analyse the evidence, review your circumstances, and advise you on your chances of success.
In the same way, anyone creating or amending a Will should consult with an Estate Planner so they can avoid it being contested.
To engage a lawyer with specialist experience in Wills and Estates, get in touch with our expert team. Please contact the team at Maguire & McInerney Lawyers or phone us directly on 02 4228 5911 to learn more.